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.

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

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

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.

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

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.

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

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.

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

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

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.

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

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.

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 Professor of Law, University of Texas School of Law

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.

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

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

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. 

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 Assistant Professor of Law, Barry University School of Law

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.   

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

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.

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

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

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

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

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.

Erik M. Jensen Coleman P. Burke Professor Emeritus of Law, Case Western Reserve University School of Law

Under the Articles of Confederation, Congress lacked the power to protect the states from military warfare waged by foreigners and from commercial warfare waged by one another. The states proved unable to solve these difficulties on their own. They acted individually when they needed to act collectively, and the Framers of the United States Constitution concluded that the states cannot reliably accomplish an objective when doing so requires them to cooperate.

Arguably the most severe problem facing the young nation under the Articles was that the national government had no power to tax individuals directly; indeed, it had no effective way of raising money at all. Instead, it was limited to “requisitioning” (that is, asking) the states to contribute their fair share of tax revenue to the national treasury in order to repay the Revolutionary War debts and fund the national government. Instead of complying with these requests, states free rode off the contributions of sister states. The consequence was that the national government was severely underfunded, which (among other things) gravely threatened national security.

The solution to the collective action failures of the Articles lay with the establishment of a more powerful and comprehensive unit of government—a national government with the authority to tax, raise and support a military, regulate interstate and international commerce, and act directly on individuals. The Taxing Clause of Article I, Section 8, is listed first for a reason: the Framers decided, and the ratifiers of the Constitution agreed, that Congress must itself possess the power “to lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States.” Congress was given the power to assess, levy, and collect taxes without any need of assistance from the states, and Congress’s taxing power was not limited to repayment of the Revolutionary War debts—it was prospective as well.

After the Constitution was ratified, Alexander Hamilton (representing the Federalist Party) and James Madison (representing the Democratic Republican Party) debated the scope of the Taxing Clause. According to Hamilton, Congress possessed a robust power to tax (and spend) regardless of whether the tax (or expenditure) could plausibly be viewed as carrying out another enumerated power of Congress, such as regulating interstate commerce or raising and supporting a military. Madison argued that Congress had no independent power to tax and spend in pursuit of its conception of the general welfare; rather, Madison contended, the constitutional meaning of the phrase “general Welfare” is defined and limited by the specific grants of authority in the rest of Section 8. The Supreme Court did not weigh in on this longstanding debate over the scope of the federal taxing and spending powers until 1936, in United States v. Butler (1936), when it sided with Hamilton. Ever since, the law has been that Congress can use the Taxing Clause without tying such use to another of its constitutional powers.

What are the constitutional limits on Congress’s authority to use the Taxing Clause? It is clearly established that such power is limited by constitutional provisions protecting individual rights. For example, it would undoubtedly violate the Free Speech Clause if Congress taxed people just because they criticized the federal government. 

More controversial is whether there are internal limits on the Taxing Clause, and whether they may be enforced by courts. Relatively early in American history, the Supreme Court suggested, in McCulloch v. Maryland (1819), that redress for misuse of the taxing power lies with the political process, where unhappy citizens can vote politicians out of office.  Later, the Court suggested that courts, too, may enforce the limits on the Taxing Clause, and that Congress exceeds its power when it imposes monetary payments that have the primary purpose of regulating people’s behavior, not of raising revenue, even when Congress labels the payment a “tax,” not a “penalty.” Child Labor Tax Case (Bailey v. Drexel Furniture Co.) (1922). In more recent times, the Court sustained the constitutionality of required payments just because they raised at least some revenue. Sonzinsky v. United States (1937); United States v. Kahriger (1953). Because decisions from one era deviated from earlier decisions without overruling them, the Court’s Taxing Clause jurisprudence was for a long time difficult to sort out.

In 2012, in NFIB v. Sebelius (the Health Care Case), the Court clarified much of the confusion. It rejected a focus on the primary purpose of the required payment at issue, observing that in America, “taxes that seek to influence conduct are nothing new. Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry.” Instead of asking about the primary purpose of the required payment, the Court adopted a “functional approach,” and made whether the payment was a tax or a penalty turn on the “practical characteristics” and likely effects of the payment. 

Specifically, the Court held that the so-called “individual mandate” in the federal health care law (the requirement to either obtain health insurance or make a payment to the federal government) was within the scope of the Taxing Clause—even though Congress labeled the payment a “penalty,” not a “tax”—primarily because it was likely to have a relatively modest impact on people’s behavior. The Court reasoned that the required payment would likely discourage people from going without insurance without preventing them from doing so, which is why it was expected to raise several billion dollars in revenue each year. The Court’s holding in NFIB on the scope of the Taxing Clause is today the law of the land.

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

Steven J. Willis Professor of Law, University of Florida Levin College of Law

The Taxing Clause solved perhaps the single greatest collective action failure of the states under the Articles of Confederation: the serial inability of the several states to adequately fund the national government in light of free riding by sister states.  See, e.g., Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stanford Law Review 115 (2010). This failure caused serious financial problems for the young, vulnerable nation and raised grave national security concerns. Where the colonists had insisted that “taxation without representation” was illegitimate, Americans under the Articles learned that taxation with representation was indispensable.

And so the Constitution confers upon Congress robust taxing authority. Congress was granted the power in the initial clause of Article I, Section 8, “to lay and collect Taxes” not just to repay the Revolutionary War debts—the most immediate concern of the country at the time—but more broadly and prospectively to “provide for the common Defence and general Welfare of the United States.” 

Are there any internal constitutional limits on Congress’s authority to use the Taxing Clause—limits that courts should be prepared to enforce? Many progressive constitutionalists would say “no.” They would follow Chief Justice John Marshall’s suggestion in McCulloch v. Maryland (1819), that the power to tax, where it exists, “is the power to destroy.” On this view, redress for misuse of the federal taxing power lies with the political process, where angry citizens who feel overtaxed can “vote the bums out.” Progressive constitutionalists often believe in political safeguards, not judicial safeguards, to limit the exercise of legislative power by the federal government.

My own view is closer to that of Justice Oliver Wendell Holmes, who famously wrote (at a much later date in American history) that the power to tax, while broad, “is not the power to destroy while this Court sits.” Panhandle Oil Co. v. Mississippi ex rel. Knox (1928) (Holmes, J., dissenting). The text of the Taxing Clause is best read to require that exercises of the taxing power be consistent with revenue-raising, regardless of whether raising revenue—as opposed to regulating human behavior—is Congress’s primary purpose. (The Taxing Clause, unlike the Origination Clause of Article I, Section 7, does not require that Congress’s purpose be “for raising Revenue.”) 

Moreover, without any enforceable limits on the Taxing Clause, Congress could readily circumvent even very modest limits on the scope of the Commerce Clause. For example, the Supreme Court has held for more than two decades that the Commerce Clause empowers Congress to use penalties to regulate economic conduct that substantially affects interstate commerce, but not to regulate noneconomic conduct. What prevents Congress from penalizing non-economic conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of the federal tax power.

In NFIB v. Sebelius (2012), the Court considered whether the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) imposes a penalty or a tax by requiring most individuals to either obtain health insurance or make a payment to the Internal Revenue Service. Writing for the Court, Chief Justice Roberts concluded that this “shared responsibility payment” for going without insurance is a tax for purposes of the Taxing Clause, even though Congress called it a penalty.

Along with Robert Cooter, I have developed an effects theory of the federal tax power in order to distinguish between penalties and taxes. See Robert D. Cooter & Neil S. Siegel, Not the Power to Destroy: An Effects Theory of the Tax Power, 98 Virginia Law Review 1195 (2012). We believe that the Court’s tax-power ruling in NFIB is correct, and that our effects theory provides the best theoretical justification for it.

The effect of a penalty is to prevent conduct, thereby raising little revenue, whereas the effect of a tax is to dampen conduct, thereby raising revenue. Three characteristics of a mandatory payment create incentives that either prevent or dampen conduct. These characteristics provide criteria for distinguishing between penalties and taxes. A pure penalty (1) condemns the actor for wrongdoing; (2) she must pay more than the usual gain from the forbidden conduct; and (3) she must pay at an increasing rate with intentional or repeated violations. Thus, a penalty expressively coerces a person by condemning her conduct, and it materially coerces a person with relatively high rates and enhancements for repeated violations. Alternatively, a pure tax (1) permits a person to engage in the taxed conduct; (2) she must pay an amount that is less than the usual gain from the taxed conduct; and (3) intentional or repeated conduct does not enhance the rate. A tax does not coerce expressively because it permits the person to engage in the taxed conduct. And it does not coerce materially because relatively low rates without enhancements leave the person with a reasonable financial choice to engage in the taxed conduct.  

The ACA’s required payment for remaining uninsured has the expression of a penalty and the material characteristics of a tax (the Court in NFIB called them “practical characteristics”). The constitutional identity of this required payment for purposes of the Taxing Clause depends upon the reasonable expectations of Congress concerning its effect. If Congress could have reasonably concluded that the exaction will dampen—but not prevent—the general class of conduct subject to it (people going without health insurance) and thereby raise revenue, then courts should interpret it as a tax regardless of what the statute calls it. If Congress could have reasonably concluded only that the exaction will prevent the conduct of almost all people subject to it and thereby raise little or no revenue, then courts should interpret it as a penalty. 

In the case of the minimum coverage provision in the ACA, the non-partisan Congressional Budget Office predicted that the required payment for non-insurance would dampen uninsured behavior but not prevent it, thereby raising several billion dollars in revenue each year. Accordingly, the payment is a tax for purposes of the Taxing Clause.    

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

Without the power to tax, a government will have few resources to do anything. It cannot effectively police its citizens, protect its people from foreign invaders, or regulate commerce because it cannot pay the associated costs. Discarding the Articles of Confederation—which merely allowed Congress to ask states for money—the drafters effectively adopted a taxing document – the U.S. Constitution. The Constitution gave Congress the power to lay taxes and also to collect them. Taxes—more precisely, the money they provide—make all other government actions possible. One might think about that in relation to present-day loose confederations such as the United Nations, NATO, and the European Union. Without the enforceable power to tax, they are necessarily subject to the potentially fleeting willingness of members to contribute.

The U.S. taxing power, while very broad, has important limitations. First, direct taxes must be apportioned, a very difficult requirement. Second, duties, imposts, and excises must be uniform—an easy-to-meet standard, but one which, if ignored, can be fatal to a statute.   See, Steven J. Willis & Hans G. Tanzler IV, Affordable Care Act Fails for Lack of Uniformity, 27 U. Fla. J. Law Pub. Pol’y 81 (2016). Third, bills for “raising revenue” must originate in the House. Although “raising revenue” and “taxing” are not fully the same, the overlap is substantial and can have important consequences. See, Steven J. Willis & Hans G. Tanzler IV, The Wrong House: Why “Obamacare” Violates the U.S. Constitution’s Origination Clause, Wash. Leg. Found. Critical Legal Issues Number 190 (2015).

Fourth, under the Sixteenth Amendment, “income taxes” apply only to “income” “derived” “from a source.” What constitutes an “income tax,” let alone “income,” and what “derived” “from a source” means have been subject to more than one hundred years of debate. Essentially, a taxpayer must experience an “accession to wealth” from an event such as a sale, exchange, or receipt.   See, Steven J. Willis & Nakku Chung, Of Constitutional Decapitation and Healthcare, 128 Tax Notes 169, 189-93 (2010). A mere increase in value is not “income” and thus cannot be taxed to humans. For entities, such as corporations, however, a tax on value increases is not an income tax; instead, it is an excise subject merely to uniformity. Flint v. Stone Tracy Co. (1911). To summarize: the power to tax humans differs substantially from the power to tax entities.  

Fifth, taxes exist in the presence of various power limitations and personal rights found in the Constitution. Although the application of a tax surely cannot violate the Equal Protection Clause, the Supreme Court has more generally held that the Due Process Clause does not restrict the taxing power. A. Magnano Co. v. Hamilton (1934) (“Except in rare and special instances, the due process of law clause contained in the Fifth Amendment is not a limitation upon the taxing power conferred upon Congress by the Constitution.  Brushaber v. Union Pacific Railroad Co. (1916). And no reason exists for applying a different rule against a state in the case of the Fourteenth Amendment.”) Recognizing the lack of constitutional due process protections, Congress statutorily created “collection due process” limitations.   See, Steven J. Willis & Nakku Chung, No Healthcare Penalty? No Problem: No Due Process, 38 Am. J. Law & Med. 516 (2013). Those important protections, however, are subject to the whim of future Congresses.

Sixth, arguably taxes must be imposed “for the general welfare.” A close reading of Article One, Section Eight suggests the limitation actually restricts the spending power rather than the taxing power. Interestingly, in NFIB v. Sebelius (2012), Justice Ginsburg spoke of the general welfare restriction as applying both to taxing and spending. In contrast, Chief Justice Roberts twice discussed the restriction, but only in terms of the spending power. In any event, this restriction is easily met and thus largely inconsequential.       

Lastly, the reach of taxing power limitations remains partially unclear, even 225 years after the adoption of the Constitution. The Federalist Papers spoke of two broad tax categories: direct and indirect, with direct being subject to apportionment and indirect being subject to uniformity. The Constitution, however, does not quite say that. Instead, it first grants Congress broad taxing power. It then requires that direct taxes be apportioned. Next, it requires that duties, imposts, and excises be uniform. It never uses the term “indirect.” This leaves open the question of whether some other type of tax is possible, which need be neither apportioned nor uniform. In 1796, the Supreme Court suggested, but did not hold, that any such “other” tax must be uniform. Hylton v. United States (1796) (Chase, J.). Over the past two hundred years, the Court has routinely spoken of taxes as being either direct or indirect; however, it has yet to consider a case holding “indirect taxes” as encompassing duties, imposts, and excises and nothing more. As a result, the question remains at least technically unresolved. 

Arguably, the Affordable Care Act tax is just that: a newly found type of tax. In NFIB, the Supreme Court held it was a tax, but not a direct one. Traditionally, duties, imposts, and excises each involve some activity: duties and imposts involve imports and transactions, while excises involve an activity, the use of something, or the exercise of a privilege. Not having health insurance does not seem to fit within any of those categories because it involves not doing something rather than doing something. The commerce clause holding in NFIB rested on inactivity not being “commerce.” Whether the Court will apply analogous reasoning to the meaning of “duties, imposts, and excises” is uncertain but plausible. The ACA tax on the lack of insurance need not be apportioned because the Court said so in 2012. The tax appears not to be uniform; however, whether it must be uniform is less clear and remains to be litigated.

Steven J. Willis Professor of Law, University of Florida Levin College of Law

Despite this essay’s title, the Constitution permits three classes of taxation:

1. Direct taxes, which must be apportioned among the states in proportion to their populations;
2. “Indirect taxes,” specifically duties, imposts, and excises, which must be uniform throughout the country; and
3. Income taxes on humans (as opposed to businesses or other entities), which may apply to income derived from a source.

A Brief History of U.S. Tax Law

Much discussion preceding the Constitution, divided taxes into the direct and indirect categories; however, the Constitution never adopted that precise distinction.  See, e.g., The Federalist No. 36 (Alexander Hamilton). Nevertheless, Supreme Court decisions such as the License Tax Cases (1867) have routinely used the direct/indirect dichotomy. As early as 1796, in Hylton v. United States, the Supreme Court wrestled with the direct/indirect dichotomy. As the Court explained in that case, direct taxes must be apportioned while indirect taxes—duties, imposts, and excises—must be uniform; and any other tax (if possible) must be uniform. The Court held a tax on “carriages” to be indirect because it applied to the use of the carriage rather than to the property itself, an arguably nuanced distinction.

In 1895, the Supreme Court held a general income tax unconstitutional as an unapportioned direct tax, distinguishing it from a tax on business or employment income, which the Court described as a permissible excise (an indirect tax). Pollock v. Farmers’ Loan & Trust Co. (1895). In contrast, the Court held, in 1911, that a tax on corporate income was constitutional as a uniform excise—a type of indirect tax. Flint v. Stone Tracy Co. (1911). The Court reasoned that the original income tax applied directly to humans, while the corporate income tax applied through the corporate entity: humans might suffer the tax through higher prices or lower profits, but they would do so indirectly. In 1913, the Sixteenth Amendment authorized an unapportioned tax on income “derived from a source.” The country adopted the Amendment to reverse the 1895 Pollock decision. Many later decisions have wrestled with the “derived” requirement. The best description requires income to constitute “an accession to wealth, clearly realized, over which the taxpayer has complete dominion.” Commissioner v. Glenshaw Glass (1955).

Although some writers describe the direct/indirect and apportionment/uniformity requirements as antiquated, the dichotomies have at least some modern significance. To grasp that significance, one needs to understand the underlying terms.

Direct Tax/Apportionment

A direct tax applies to land or directly to humans “without regard to property, profession, or any other circumstance.” Hylton v. United States (1796); see also NFIB v. Sebelius (2012). Such a tax must be apportioned. At the time of the Constitutional Convention, states with large amounts of land, as well as those with large populations, feared heavier taxes on their land and populations, including slaves, as compared to smaller and less populous states. The apportionment requirement, which also governs representation in the House of Representatives, became the compromise. See Article I, Section 2.

To be apportioned, a tax must be the same amount per person in every state, a very difficult burden to satisfy. For example, a dollar-per-acre tax would fail unless every state had the same acreage per capita. As a result, federal land taxes do not exist. States, unhampered by apportionment, routinely impose real property taxes. In contrast, a dollar-per-human tax (also known as a capitation) would be constitutional, as it would be the same amount per capita in every state. The United States, however, has never imposed such a tax, arguably the only form that a direct tax could constitutionally take.  In 2012, the Supreme Court considered whether the “shared responsibility payment” for lacking health insurance in the Affordable Care Act was a direct tax, and held that it was not: while applying directly to humans, it varies depending on whether they have health insurance, an “other circumstance.” NFIB v. Sebelius. Quoting Hylton, the Court held the required payment to be non-direct, and citing Pollock, concluded that the payment is not an income tax. 

Indirect Tax/Uniformity

Duties, imposts, and excises must be uniform. See Article I, Section 8, Clause 1. As “indirect” taxes, they do not apply directly to humans. For example, a duty applies to the act of importing property. Although the ultimate purchaser suffers the tax, the incidence (or burden of the tax) is thought to fall primarily on the importer, and therefore it is considered to be indirect. Excises commonly apply to tires, telephone charges, gambling, employment, and corporate income. In each case, humans may ultimately suffer the tax through higher prices or lower wages, but the incidence is viewed as indirect through the seller, employer, or entity.

Unlike apportionment, uniformity does not require each person to pay the same amount; instead, it requires the same rate structure to exist nationally. For example, Congress may tax truck tires differently than bicycle tires; but however it taxes truck tires, the specific truck tire rates must be the same in every state. As such, it is a geographic requirement. Steward Machine Co. v. Davis (1937); Flint v. Stone Tracy Co. (1911); Knowlton v. Moore (1900). The Supreme Court has never struck down an indirect tax as failing uniformity, although it has considered the issue several times. Uniformity analysis is not easily reducible to black-letter rules; nevertheless, some such rules emerge:

1. Taxes may vary by an object’s value or the taxpayer’s income so long as the rates are uniform. They may even apply to objects or transactions found only in some states, such as snow tires in the north or beach umbrellas in coastal states. Edye v. Robertson (Head Money Cases) (1884).
2. Tax rates may vary if based on physical, such as coastlines and frigid conditions; however, such variations necessitate a particularly close examination. For instance, in United States v. Ptasynski(1983), the Court distinguished arctic oil from oil produced elsewhere. It upheld a tax on income derived from oil pumped above the Arctic Circle. Rates may also vary because of isolated problems or “diverse conditions.” Florida v. Mellon (1927). How isolated or diverse the problem or condition must be is unclear.

Income Tax/Derived

Income taxes may be imposed only on “derived” income. This “realization event” requirement generally refers to a transaction other than the mere passage of time.  Thus the Sixteenth Amendment permits taxation of gains from sales or exchanges of property, but not those resulting merely from increased values. It also permits taxes on rents and interest. Although direct, such taxes need not be apportioned because the Amendment eliminated the apportionment requirement for income taxes. 

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

Steven J. Willis Professor of Law, University of Florida Levin College of Law

The fourth clause of Article I, Section 9, is known as the “Direct Tax Clause.”  It provides that “[n]o Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” This Clause requires that the financial burden of any “direct” tax imposed by Congress fall equally on each state in the Union in terms of its population. For example, if two states have the same population, then the citizens of each state collectively must pay the same amount of direct tax to the U.S. Treasury. 

While it is clear how apportionment works, it was less clear at the time of the Founding which kinds of taxes qualified as “direct,” and so were subject to apportionment. According to Madison’s notes of the proceedings of the Constitutional Convention in 1787, Massachusetts delegate Rufus King at one point “asked what was the precise meaning of direct taxation?  No one answd.”  The text of Section 9 contemplates that “capitation” taxes, otherwise known as “head” or “poll” taxes, qualify as direct taxes.  Capitations are taxes on people in simple virtue of the fact that they exist. The constitutional text also seems to imply that at least one other kind of tax qualifies as direct.

The original purpose of requiring apportionment for direct federal taxes appears to have been to benefit Southern states. Specifically, the apportionment requirement was primarily designed to render impracticable federal head taxes on slaves and federal taxes on land, both major sources of wealth in eighteenth century America. Without the requirement of apportionment by state population, the burden of both kinds of federal taxes would have fallen most heavily on the South, because it possessed disproportionately more wealth in land and slaves than did the North. By contrast, apportioning any such tax by state population would have fallen most heavily on the North, because it was home to the most populous states. 

This original purpose explains why the third clause of Article I, Section 2, provides that both “Representatives and direct Taxes shall be apportioned among the several States.” The more people who live in a state, the more representation in Congress that state receives, and the more its citizens collectively pay in direct taxes. The practical consequence of requiring apportionment for head taxes on slaves and taxes on land was that the federal government did not tax slaves or land. The Thirteenth Amendment ended the possibility of head taxes on slaves, and to this day Americans do not pay property tax to the federal government. 

From the beginning, the Supreme Court has understood only very few taxes to be subject to the apportionment requirement. In its first case considering the issue, Hylton v. United States (1796), the justices who wrote opinions included only capitation and land taxes within the category of direct taxes. Throughout the nineteenth and twentieth centuries, the Court upheld federal taxes that had not been apportioned on insurance premiums, state bank notes, inheritances, trades, personal income, and corporate income. The Court reasoned that all of those taxes were excise taxes, not direct taxes.  See, e.g., Bruce Ackerman, Taxation and the Constitution, 99 Columbia Law Review 1 (1999). 

The major exception is the Court’s decision in Pollock v. Farmers’ Loan & Trust Co. (1895), which invalidated the progressive federal income tax statute then in effect. In that case, the Court remarkably and inconsistently held that federal taxation of income that was derived from real or personal property (such as rental or dividend income) was direct and so subject to apportionment, in contrast to income taxes on wages and business profits, which were not. The Pollock Court confused matters by reasoning that certain income taxes could qualify as direct taxes on the underlying property from which the income was derived. 

The Sixteenth Amendment was ratified in 1913 in order to overrule the decision.  It authorizes Congress to tax “incomes, from whatever source derived, without apportionment of the several States,” thus tracking the previous, longstanding rule on direct taxes. The Sixteenth Amendment makes clear that income, not ownership, is being taxed, so there is no requirement of apportionment and thus no constitutional problem.

Today, the Direct Tax Clause operates to render impracticable only federal capitations, federal taxes on the ownership of land, and federal taxes on personal property. Murphy v. IRS  (D.C. Cir. 2007). For example, the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) requires most individuals to either obtain health insurance or make a payment to the Internal Revenue Service. In NFIB v. Sebelius (2012), the Supreme Court, after upholding the required payment as a tax for purposes of the Taxing Clause in the first clause of Article I, Section 8, rejected the argument that it was a direct tax and so had to be apportioned. The Court’s holding is plainly correct. The required payment for going without health insurance in the ACA is a tax on those who choose to remain uninsured, not a head tax on those who simply exist, or a tax on land ownership, or a tax on personal property. It is therefore not a direct tax and need not be apportioned.

Excepting Pollock, the Court has been right all these years to define the category of direct taxes very narrowly. As discussed, a narrow definition is most consistent with the constitutional text, the original purpose of the Direct Tax Clause, the Court’s precedent, and the Sixteenth Amendment. 

A narrow definition also makes good sense from a consequentialist perspective. The Constitution confers robust federal power to tax on the theory (grounded in experience) that taxation with representation is a necessity. Requiring apportionment, however, renders federal taxation impracticable. 

Apportionment also requires the federal government to privilege regressivity over progressivity in taxation. Apportionment means that citizens of relatively wealthy states must pay at lower rates than citizens of relatively poor states in order to make the total payment for states of equal population come out the same. Such a tax regime is difficult to defend morally, particularly in an America in which the income distribution is increasingly skewed in favor of a very small number of extraordinarily wealthy Americans. 

Finally, such a tax regime is difficult to defend from a structural, federalism perspective.  States that impose progressive income taxes are at a competitive disadvantage in attracting wealthy residents relative to states that do not.  See, e.g., Akhil Reed Amar, America’s Constitution: A Biography 408 (2005).  Only progressive taxation at the federal level can overcome the collective action problem and avoid a destructive “race to the bottom.”

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

The direct/indirect tax dichotomy remains important because it affects the types of tax the federal government can impose. Classification between the two categories, as well as application of the apportionment and uniformity tests can determine the validity of modern statutes.

Very difficult to satisfy, the apportionment requirement can be met only with a capitation—a direct tax on humans simply because they are humans. To satisfy apportionment, the tax would necessarily be the same per person nationwide. Congress has never enacted such a tax and arguably is unlikely to do so in the foreseeable future. That equality requirement is a powerful restriction on the taxing power: remember, the income tax is progressive and applies much more heavily on high-income persons than on others. Because the income tax is not subject to apportionment—largely because of the Sixteenth Amendment—progressivity is possible. In addition, Congress cannot impose a property tax on land. Apportioning such a tax would be impossible because the amount of land per person is not the same in every state. Land taxes—known as ad valorum and “property taxes”—however, are very important to the states, with many states raising a substantial portion of their revenue from them. Restricting such taxes to the states is another very significant restriction on the federal taxing power.

Although Congress cannot impose a property tax directly on personal property—such as cars, furniture, stocks or bonds—as opposed to land—, it has two fairly easy work-arounds for such taxes. NFIB v. Sebelius (2012). Since 1796, the Supreme Court has viewed a tax on the use of personal property as an indirect tax subject to uniformity rather than to apportionment. Hylton v. United States (1796) (Chase, J.). As a result, it could easily style a tax on automobiles as a tax on the use of the item and thus avoid apportionment. Indeed, because the number of cars (or any other personal item) is unlikely ever to be the same per capita in every state, without the Hylton decision, a federal personal property tax would be impossible because it could never satisfy apportionment. Although Congress does not often impose direct taxes on personal property, Congress routinely imposes similar taxes on the purchase of personal property such as tires and gasoline, styling them as excises subject merely to uniformity. Significantly, it could impose a nationwide automobile or telephone usage tax.

Until 1913, a tax on either personal or real property income was effectively forbidden because such taxes were considered direct and not easily apportioned. Pollock v. Farmers’ Loan & Trust Co. (1895). The Sixteenth Amendment resolved this by replacing the income tax apportionment requirement with a new requirement that a tax on income need not be apportioned so long as the tax is imposed on income “derived from a source”—a serious, but different restriction.

In 2012, the Supreme Court narrowly read the direct tax definition in relation to the Affordable Care Act (ACA). The Court held the ACA penalty on persons without minimum health insurance to be a tax; however, the Court also held it not to be “any kind of direct tax.” NFIB v. Sebelius (2012). In so doing, the Court made two critical points. First, by citing Pollock favorably, the Court removed any argument that the “penalty” was supportable as an income tax subject to the “derived” test. That was important because the “tax” is, in part, a function of a person’s income. Without the Sixteenth Amendment as a possible foundation, the tax/penalty must satisfy either apportionment or uniformity. Second, the Court relied on the often-quoted 1796 Hylton language: a direct tax is one imposed “without regard to property, profession, or any other circumstance.” Finding the lack of health insurance an “other circumstance,” the Court found that the mandate to purchase insurance was not a direct tax, and it rejected apportionment as applying to the ACA.

Interestingly, the Court quoted Justice Chase out of context. Chase actually said: “I am inclined to think, but of this I do not give a judicial opinion, that the direct taxes contemplated by the Constitution are only two, to wit, a capitation or poll tax simply, without regard to property, profession, or any other circumstances, and the tax on land.” Hylton v. United States (1796) (Chase, J.). The NFIB Court thus omitted Chase’s independent clause and quoted only the dependent clause, which he described as not his “judicial opinion”; however, it labeled the quotation as “opinion of Chase, J.” which is best described as misleading. Nevertheless, the NFIB decision appears settled: the ACA tax is neither a direct tax nor an income tax.

But discussion of a tax which is neither direct nor an income tax necessarily raises the issue of uniformity. Uniformity is a much easier-to-satisfy requirement than apportionment.  It is all about geography: the tax must apply the same in every state.

Few Supreme Court decisions have applied uniformity and none has invalidated a tax because of it. Essentially, the geographic element of uniformity applies in a laxer manner if the natural geographic variations among states justify a lack of uniformity or if a particular state’s behavior causes it. For example, the Court upheld a charge on immigration through sea ports though it had no impact on land-locked states, finding that there was substantial uniformity. Edye v. Robertson (Head Money Cases) (1884). Similarly, in 1983 the Court upheld a difference between taxes on income from oil pumped above the arctic circle and taxes on income from oil pumped elsewhere, noting that there were important natural differences in the oil and the extraction process. United States v. Ptasynski (1983). In 1927, the Court upheld the estate tax although it ultimately applied differently to Florida. Florida v. Mellon (1927). The difference, however, resulted from a particular Florida statute which created the lack of uniformity. Thus a state cannot self-impose non-uniformity and then complain about it.

Significantly, the NFIB decision did not discuss “uniformity.” The Court likely avoided addressing this issue because it was premature: because the Act was not yet operable, no facts indicating uniformity or the lack thereof were available. Since 2014, however, the tax on persons without health insurance has applied differently in the various states.  It varies as a function of the cost of health insurance in each state, as well as the federal “poverty level,” which itself varies between Alaska, Hawaii, and other states. As a result, the ACA tax can vary from one person to another even though the two persons may reside less than a mile apart. The only important distinction may be the man-made political boundary between them: the state line.  Whether the Supreme Court will hear a case challenging the ACA for lack of uniformity is unclear. If it does, that may be the first instance in which the constitutional restriction has a real impact.

Steven J. Willis Professor of Law, University of Florida Levin College of Law

Article I, Section 1 provides: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” The Constitution first vests all federal legislative powers in a representative bicameral Congress. Central to the social compact, this lawmaking institution forms the foundation of the federal government and allows the people’s representatives to act together for the common good. Article I, Section I establishes several fundamental features of the Congress.

1. Bicameralism. The Framers of the Constitution of 1789 created a powerful national legislature to represent both the People and the States. Yet they also feared its awesome power and therefore determined to limit that power in order to protect individual liberty. The Vesting Clause embodies two strategies for limiting Congress’s power. One strategy was to condition legislation upon the agreement of two differently constituted Chambers. See The Federalist No. 51 (James Madison). With smaller districts and short terms, the House of Representatives was expected to be responsive to We the People. But hasty popular measures could be ameliorated or killed in the Senate, whose members served for longer terms and were selected by the state legislatures until enactment of the Seventeenth Amendment.

2. Limited and Enumerated Powers. As a more explicit limitation, the Constitution vests Congress only with those legislative powers that are “herein granted.” Unlike state legislatures that enjoy plenary authority, Congress has authority only over the subject matter specified in the Constitution, particularly in Article I, Section 8. Early Presidents and Congresses took seriously the limited jurisdiction of the federal government. They assumed no federal power to fund internal improvements, for example. They also debated what powers might be implied by the grant of the enumerated powers.

A significant early debate concerned whether Congress could create a Bank of the United States. James Madison and Thomas Jefferson argued against such a power, but President Washington ultimately supported Alexander Hamilton’s plan for the Bank, even though the Framers had rejected bank incorporation as an enumerated power. The Supreme Court upheld the constitutionality of the Bank and recognized that the enumerated powers included some implied ones in McCulloch v. Maryland (1819).

The New Deal Court expanded upon McCulloch’s interpretation of Congress’s enumerated powers: the Commerce Clause of Article I, Section 8, Clause 3 grew into a capacious source of congressional authority to regulate the economy, and the Necessary and Proper Clause at the end of Section 8 was interpreted to expand Congress’s authority yet further in Wickard v. Filburn (1942). The Court has afforded significant deference to Congress’s judgment about how far to press its enumerated powers.

Despite the expansive interpretation of the commerce power, the principle of a Congress vested only with limited and enumerated powers endures. In United States v. Lopez (1995), the Court invalidated a federal law making it a crime to possess a firearm close to a public school. Not only did Congress fail to connect the statute to an enumerated power, but the power asserted (regulation of commerce) was not considered the kind of economic regulation the Court had previously sanctioned. Lopez reaffirmed some outer boundary to the federal regulatory power. 

3.  Nondelegation. Article I, Section 1 vests all legislative powers in Congress, which means the President and the Supreme Court cannot assert legislative authority. See Youngstown Sheet & Tube Co. v. Sawyer (1952). This marks an important separation of powers between the departments of the federal government. It also has been interpreted to include a principle of nondelegation, that the people’s representatives in Congress must make the law, rather than delegate that power to the executive or judicial branch.

For most of American history, judges and commentators have assumed that Congress cannot “delegate” legislative authority and the Supreme Court has located this rule in Article I, Section 1. See, e.g., Whitman v. American Trucking Associations, Inc. (2001). Individual Justices have opined that the nondelegation doctrine ought to be treated as a serious limitation on Congress’s authority. (For example, see Justice Thomas’s dissent in Whitman.)

While the principle of nondelegation persists, the Supreme Court has allowed a lot of delegation, so long as Congress includes intelligible principles to guide discretion. The Marshall Court ruled that Congress could delegate authority to the federal courts to adopt rules of process, Wayman v. Southard (1825), and to the President to revive trading privileges, Cargo of the Brig Aurora v. United States (1813). Although assuming a nondelegation doctrine, no law was invalidated for this reason in the nineteenth century.    

In 1935, the Supreme Court invalidated a congressional delegation of lawmaking authority to private institutions—the only occasion where the Court has invalidated a law under the nondelegation doctrine. A.L.A. Schechter Poultry Corp. v. United States (1935); Panama Refining Co. v. Ryan (1935). 

Particularly since the New Deal, Congress often legislates in open-ended terms that give substantial authority to executive branch officials and judges. Since 1935, almost all the Justices on the Supreme Court have either applied the nondelegation doctrine leniently, to allow large-scale delegations accompanied by vague limiting principles, Mistretta v. United States (1989), or have said the doctrine of unconstitutional delegation is not readily enforceable by the courts. (See Justice Scalia’s dissent in Mistretta).

The Court, however, sometimes gives effect to the values undergirding the nondelegation principle through narrow interpretations of statutory delegations. For example, the Supreme Court has overruled agency rules adopted pursuant to congressional delegations, on the ground that the agency is advancing a big change in policy. “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Utility Air Regulatory Group v. EPA (2014) (plurality opinion) (quoting FDA v. Brown & Williamson Tobacco Corp. (2000)); see also King v. Burwell (2015).

William N. Eskridge, Jr. John A. Garver Professor of Jurisprudence, Yale Law School

Neomi Rao Associate Professor of Law, Antonin Scalia Law School, George Mason University

There are many contentious issues arising under Article I, Section 1, which vests Congress with “all legislative Powers herein granted.” I shall argue that the best reading of the Vesting Clause (Article I, Section 1) is captured by the concept of a delegation (rather than nondelegation) doctrine. Under this doctrine, Congress is the supreme lawmaker, and its limits on delegated authority must be strictly observed.

The Vesting Clause text is ambiguous, even read in light of the Constitution’s structure. See Thomas W. Merrill, Rethinking Article I, Section 1:  From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2114-39 (2004). One might read Article I, Section 1 to prohibit Congress from delegating the power to adopt rules having the effect of law (a broad reading of “legislative Powers”) or the power to pass statutes (a narrower reading). But one also might read the Vesting Clause to give Congress the supreme authority to make law, including the discretion to delegate lawmaking authority to other officials.

As early as the Marshall Court, judges have understood that Congress may delegate to other federal officials “powers which the legislature may rightfully exercise itself,” including the power to make rules with binding legal effect. Wayman v. Southard (1825). In the last century, the Court has confirmed that Congress may delegate lawmaking authority to other public officials but has insisted that Congress “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.” J.W. Hampton, Jr., & Co. v. United States (1928).

Since 1935, the Court has never invalidated legislation for violating the so-called “nondelegation doctrine.” The intelligible principle limitation has either been leniently applied or considered unreviewable. In practice, there is no judicially enforceable nondelegation doctrine. Instead, Article I, Section 1 has been effectively interpreted to establish a delegation doctrine, whereby Congress has supreme lawmaking authority (subject to other constitutional limits), including the authority to delegate.

The Supreme Court’s unwillingness to give teeth to a nondelegation principle has potential constitutional costs: it frees Congress to slough off hard policy questions to other officials and may reduce the democratic accountability for policymaking. See, e.g., David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (1993). But these potential costs might be managed by a sober understanding of the delegation doctrine.  A standard expression is this one: “The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes.” Chrysler Corp. v. Brown (1979).   

Thus, judges will not readily find a delegation of lawmaking authority; a delegation must usually be explicit. More importantly, the delegation is subject to the limitations set forth or implicit in the congressional grant or in other statutory provisions. This understanding of the delegation doctrine is the conceptual foundation for the Supreme Court’s deference to agency rules that have the effect of law. United States v. Mead Corp. (2001) (the canonical understanding of the Chevron deference doctrine, whereby courts defer to an agency’s rules filling in an ambiguity in the statute it administers); see also Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (1984). 

Indeed, the democratic accountability concerns with a broad understanding of the delegation doctrine have been addressed by the Supreme Court’s review of agency actions pursuant to delegated lawmaking authority. To begin with, the Court insists that agencies engaged in legislative rulemaking follow the notice-and-comment procedures demanded by the Administrative Procedure Act, and which have been expanded by the Court itself. Motor Vehicle Manufacturers. Ass’n v. State Farm Mutual Auto. Ins. Co. (1983).

Additionally, the Supreme Court has inferred from Article I, Section 1 certain “quasi-constitutional” canons of statutory interpretation that limit agencies from usurping the power to make big policy moves beyond those authorized by Congress. Mistretta v. United States (1989); William N. Eskridge Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 607 (1992).

One such rule of construction is the major questions canon. Even if Congress has delegated to an agency general rulemaking or adjudicatory power, judges presume that Congress does not delegate its authority to settle or amend major social and economic policy decisions. “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Utility Air Regulatory Group v. EPA (2014) (plurality opinion) (quoting FDA v. Brown & Williamson Tobacco Corp. (2000)); see also King v. Burwell (2015).

The major questions canon gives teeth to the Article I, Section 1 norm of congressional legislative supremacy, because it imposes a significant limit on agency lawmaking that is consistent with the assumptions of the congressional process. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside:  An Empirical Study of Congressional Drafting, Delegation, and Statutory Interpretation:  Part I, 65 Stan. L. Rev. 901, 1003-04 (2013). 

The primary concern with the major questions canon is that it is a standard judges might apply unevenly. But consider the alternative—namely, enforcement of a nondelegation doctrine. Lax enforcement, the Supreme Court’s practice when it even mentions the doctrine, is toothless and possibly worthless. Strict enforcement would impose huge governance costs. Statutory interpretation canons, such as the major questions canon, are probably the best balance the Court can render for the Article I, Section 1 norm.

William N. Eskridge, Jr. John A. Garver Professor of Jurisprudence, Yale Law School

Article I, Section 1 vests all legislative powers of the federal government in a bicameral Congress. As explained above, this is often read to include a principle that legislative power cannot be delegated to the other branches, to individual members of Congress, or to private actors. Despite the Supreme Court’s lack of direct enforcement and Congress’ transfer of power to administrative agencies within the Executive branch, I shall explain that the non-delegation principle has stubbornly persisted precisely because of its centrality to a republican form of government. See Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002).

The Constitution places the lawmaking powers of the government in a representative legislature. Following John Locke, the Framers recognized that the most legitimate form of government and the one providing the greatest security to liberty and property would vest the lawmaking power in “collective bodies of men.” John Locke, Second Treatise of Government § 94. James Madison and others frequently emphasized that lawmaking must be done by a sufficiently large group, not by an individual or “cabal.”

For the Framers, lawmaking by a representative bicameral Congress would serve a number of purposes. First, laws made by the people’s representatives would have legitimacy derived from the consent of the people. Second, by requiring members of Congress to deliberate and to compromise, the difficult process of lawmaking would promote laws aimed at the general good and equally applicable to all people. Third, laws made by a collective legislature would be more likely to avoid the dangers of small factions and special interests. Collective lawmaking would not be perfect, but, along with other constitutional safeguards, would minimize the dangers of oppressive legislation.

These features reinforce why “all legislative powers herein granted” are vested in Congress. The centrality of representative, legislative power suggests constitutional limits on the delegation of legislative power to the Executive, which lacks the collective multi-member representation necessary for lawmaking.

The Supreme Court has consistently reinforced the principle of non-delegation, recognizing that Article I, Section 1, of the Constitution “vests ‘all legislative Powers herein granted . . . in a Congress of the United states.’ This text permits no delegation of those powers . . . ” Whitman v. American Trucking Associations, Inc. (2001). In Panama Refining Co. v. Ryan (1935), it stated “in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend.”

The non-delegation principle serves as an important textual and structural limit on the federal government. Congress has limited and enumerated powers that confine the overall scope and power of the federal government to better preserve individual liberty. The non-delegation principle reinforces these limits. If widescale delegation is permissible, executive agencies have discretion to increase the reach of the federal government without going through the difficult process of bicameralism and presentment. Moreover, non-delegation reinforces separation of powers. Open-ended delegation allows  lawmaking to be combined with law execution (and adjudication) in executive agencies in a manner that raises questions about political accountability, constitutional limits, and due process.

Yet in practice, the non-delegation principle has been enforced largely in the breach. Since the New Deal, Congress has increasingly delegated open-ended authority to executive branch agencies. Despite consistent recognition of a principle of non-delegation, the Supreme Court has tolerated a significant transfer of power from Congress to executive agencies to make regulations. One reason for this is the difficulty of defining an unconstitutional delegation. The Executive power includes the power to interpret and to implement the law when applying it to particular circumstances; however, the Executive power does not include the power to make the law.

As Justice Black famously explained, “[T]he President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. . . . And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that ‘All legislative Powers herein granted shall be vested in a Congress of the United States.’” Youngstown Sheet & Tube Co. v. Sawyer (1952). The difficulty arises in determining when the Executive is legislating, which is impermissible, and when the Executive is implementing statutory directives.

The Court has also declined direct enforcement of the non-delegation doctrine because it has analyzed non-delegation as a structural principle that should be checked by competition between Congress and the President. As Justice Scalia explained, “Congress could delegate lawmaking authority only at the expense of increasing the power of either the President or the courts. . . . Thus, the need for delegation would have to be important enough to induce Congress to aggrandize its primary competitor for political power.” Mistretta v. United States (1989) (Scalia, J., dissenting).

Why would Congress delegate so much power to the President, its rival for political power? Increased political polarization and the desire to avoid responsibility for difficult choices provide some explanation. In addition, delegation may empower members of Congress to control administration by influencing administrative agencies, allowing them to enhance their individual power through collusion with agencies. See Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015). Delegation may unravel the competitive tension between Congress and the President, undermining an important structural check on legislative power.

Widespread delegation to the executive has weakened Congress as an institution and made it difficult for Congress to check the Executive. The unitary Executive possesses all of the structural advantages of quick action over Congress. Once authority has been delegated, Congress has fewer mechanisms to oversee the Executive.

Non-delegation remains “a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Field v. Clark (1892). A few justices have argued for greater enforcement of the non-delegation doctrine to provide a check on executive branch agencies exercising delegated power. For instance, Justice Thomas has written that the judiciary’s failure to enforce the nondelegation doctrine comes at the “cost [of] our Constitution and the individual liberty it protects.” Department of Transportation v. Association of American Railroads (2015) (Thomas, J., concurring in the judgment).

Given the importance of non-delegation, courts should provide greater scrutiny of delegations of legislative power. Yet the non-delegation principle cannot depend solely on judicial review. Congress is vested with the legislative power. Article I, Section 1 of the Constitution provides for the essential and central role of Congress in a republican form of government, even after the rise of the modern administrative state.

Neomi Rao Associate Professor of Law, Antonin Scalia Law School, George Mason University

History. Between the fourteenth and eighteenth centuries, it was routine diplomatic practice for the royalty of a host country to give expensive gifts to departing foreign emissaries or diplomats at the end of their tenure in the host country.

However, in the mid-seventeenth century, the Dutch enacted a rule forbidding their foreign ministers from taking “any presents, directly or indirectly, in any manner or way whatever.” This was motivated by a fear of corruption. This new rule was alien to customary international relations, and it was strongly criticized by Abraham de Wicquefort, one of the more well-known Dutch political writers. Wicquefort wrote: “The custom of making a present . . . is so well established that it is of as great an extent as the law of nations itself, there is reason to be surprised at the regulation that has been made on that subject in Holland.” Wicquefort mocked his countrymen for fussing over trivial items, like a plate of fruit, and accused them of trying to create a “Republic of Plato in their fens and marshes.” The new rule was too high-minded and abstract, Wicquefort thought, and it, in essence, “condemn[s] the sentiments of all the other kings and potentates of the universe.”

But the new Americans were interested in such high-minded principles, even if they violated the sensibilities of kings and potentates. The Articles of Confederation, America’s first national constitution, apparently borrowing from the Dutch, included a provision in Article VI stating: “[N]or shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State.”

This Clause proved problematic in practice. Foreign powers gifted their departing American emissaries with the same kinds of gifts they had customarily given other diplomats, and the new Americans had to figure out how to square their American ban with standard international practice. American diplomats squirmed under two conflicting desires: on the one hand, the desire to please their foreign hosts by accepting their gifts, and on the other, the desire to stay true to the new constitution. (Of course, some American diplomats wanted not only to accept the gifts, but to keep them too.) When the King of France gave Benjamin Franklin a very expensive diamond encrusted snuff box, there were some public murmurings, but the Articles Congress ultimately permitted Franklin to keep the gift.

When the Constitution of 1787 was debated and drafted by the Philadelphia Convention, early drafts had no provision akin to the Articles of Confederation’s Foreign Emoluments Clause. However, towards the end of the Convention, on August 23, 1787, Charles Pinckney “urged the necessity of preserving foreign Ministers & other officers of the U. S. independent of external influence,” and he moved to insert a provision closely tracking the language in the Articles. Ultimately, Pinckney’s provision became Article I, Section 9, Clause 8. The provision occasioned little other recorded debate. However, at the Virginia ratifying convention, Governor Edmund Randolph explained:

This restriction was provided to prevent corruption. . . . An accident, which actually happened, operated in producing the restriction. A box was presented to our ambassador by the king of our allies. It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.

Text. As explained, the Constitution’s Foreign Emoluments Clause (also known as the Emoluments Clause, Gifts Clause, Foreign Gifts Clause, and Foreign Titles Clause) was modeled on its Articles of Confederation predecessor. The original Articles of Confederation provision provided:

[N]or shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State.

Whereas the Constitution’s Foreign Emoluments Clause now provides:

[N]o Person holding any Office of Profit or Trust under them [i.e., the United States], 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.

Thus, the modern Foreign Emoluments Clause’s text departed from its Confederation-era predecessor in two distinct ways. First, the modern Foreign Emoluments Clause, unlike its predecessor, expressly permitted Officers . . . under the United States to accept gifts from foreign governments if those officers had the consent of Congress. Some believe that this subclause introduced a substantive change, but others believe that it merely codified the prior practice of the Articles Congress.

Second, the Articles of Confederation provision applied both to Offices of profit or trust under the United States and also to Offices of profit or trust under . . . any . . . State, whereas the Constitution’s Foreign Emoluments Clause only applies to Offices of Profit or Trust under them, i.e., under the United States. The prevailing view is that the modern Foreign Emoluments Clause, unlike its Articles predecessor, does not reach state positions. Thus, some would argue that the modern Foreign Emoluments Clause has a somewhat more limited bite or scope than its Confederation-era predecessor.

Purpose. American ambassadors stationed abroad are prohibited from accepting gifts from foreign governments and their officials. The purpose is to prevent such diplomats from being bribed by foreign lucre and corrupted by other foreign gifts, and also to ensure that their loyalties remained undivided, i.e., running exclusively to the United States, its government, and its people. Substantial early American materials from the ratification era strongly support this view.

Scope. However, the text of the Constitution’s Foreign Emoluments Clause is not limited to American ambassadors or even to American diplomatic personnel. Instead, the Constitution’s Foreign Emoluments Clause applies to Offices of Profit or Trust under the United States: a substantially wider category. It is undisputed that this category applies to all officials holding appointed positions in the Judicial and Executive Branches of the national government.

What about the Legislative Branch? In 1792, the Senate asked Secretary of the Treasury Alexander Hamilton to compile a list of all persons holding Offices . . . under the United States and their salaries. Hamilton’s 1793 response included nonelected officials in each branch, including the Legislative Branch.

The question whether this category, and therefore the Constitution’s Foreign Emoluments Clause, reaches any or all federal elected positions—i.e., Representative, Senator, Vice President, President, and presidential elector—poses a difficult interpretive challenge. For example, Hamilton’s list did not include members of Congress or any other elected state or federal positions. Likewise, George Washington, while President, accepted and kept two diplomatic gifts, but he never asked for or received congressional consent. However, subsequent presidents, such as Andrew Jackson, in similar circumstances, sought congressional consent. Whose practice should we rely on?

Further Implications. The Clause is important in its own right, but also for what it might signify about the Framers’ thinking about corruption. The Clause is a solid example and strong evidence of the radicalism of the Framers’ anti-corruption commitment—a commitment that constitutionalized an anti-corruption rule which flew directly in the face of international convention and which made diplomacy more difficult for the new Republic’s officials. This anti-corruption-centered understanding of the Clause and of the Framers’ worldview might inform our understanding of other constitutional provisions and of the Constitution’s global structure. But the validity of such interpretations, which rely in large part on Framers’ intentions rather than specific constitutional text, is highly controversial. 

Zephyr Teachout Associate Professor of Law, Fordham University School of Law

Seth Barrett Tillman Lecturer, Law, National University of Ireland, Maynooth

What is a bribe, what is a gift? In one culture, a gift to a public official will be considered a bribe. In another culture, the same gift might be treated as a generous expression of appreciation. Gifts can be one of the best parts of society: they create bonds and love and warmth in a non-transactional way. But gifts can also be dangerous, creating ties that lead to unfairness and preferences, instead of equal treatment under the law. Part of the job of building a political society is identifying and separating that which is corrupt from that which is not corrupt. Societies separate and sort “corrupt” and “non-corrupt” differently. In short: whether an offering is treated as corrupt and bad or generous and valuable depends upon cultural and political context, and on how we write our laws.  

As the history of the Emoluments Clause shows, the debate about the difference between which gifts are corrupt and which gifts are societally valuable made it into the Constitutional Convention. The early Americans made the radical choice, defying international convention.

The Emoluments Clause is remarkable for its stark departure from European diplomatic culture at the time of our Founding. The Framers chose to make a commitment to preventing corruption even though it complicated diplomacy between the fledgling United States and European nations. That choice alone is evidence of the Framers’ commitment to the independence of its public officials.

But when the Emoluments Clause alone is considered in the broader context of the Constitution, it becomes evident the Constitution contains within it a structural commitment to fighting corruption. Put simply, fighting corruption was a central reason for the Constitution. That matters for how we understand the Constitution’s meaning, and the one Clause, combined with the dozens of other clauses reflecting a strong anti-corruption principle, reflects back on each of those clauses and on the entire document itself, helping create a lens through which to understand what the best interpretation of the Constitution should be.

Just as a car is designed to go forward—and therefore any effort to understand a piece in the car assumes that function—the Constitution was designed to combat corruption, and therefore any effort to understand a piece in the document should fit with that function.

What is the evidence? There are nearly two dozen features of the original American Constitution that were designed to combat corruption. These clauses include the veto power, designed to limit the corrupting power of the Presidency; the Census, designed to keep Congressional districts from becoming “rotten”; the residency requirements for representatives, designed to keep rich adventurers from buying congressional seats, and the rules regarding transparency, to make sure there was a check on representatives dipping into the public till. One delegate to the Constitutional Convention called the provision to prevent public office from being sold or traded for political power the “corner-stone” of the new Constitution.

But also, during the Constitutional Convention and afterwards, the Framers talked about corruption more than almost anything—the word “corruption,” is written in his elegant handwriting fifty-four times in Madison’s famous notebook from the summer of 1787. The problems of corruption and bribery were the hot topic of the hot summer—they arose more often than even factions or violence. As Alexander Hamilton said in The Federalist No. 68, describing the work of writing the Constitution: “[n]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”

Perhaps this Clause alone stands as a somewhat small clause, forcing one to sort out gifts and bribes in a particular context, but when it is placed in the larger puzzle of the Constitution, it is part of a pattern that shows that American Constitution was designed in order to fight corruption. 

Zephyr Teachout Associate Professor of Law, Fordham University School of Law

In 1966, Congress enacted the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342. The 1966 Act provides elected and appointed officials and employees of the United States government with concrete guidance in regard to the receipt of gifts from foreign governments. Although there have been a few exceptional cases, primarily relating to President Obama’s Nobel Prize and federal employees’ working for foreign government universities, in general, over the last half century, there has been little need for the judiciary or others to expound on the Constitution’s Foreign Emoluments Clause; there has been little need because in most cases the propriety of foreign gifts is now tested by a detailed, modern federal statute, rather than by the more than 200-year-old and obscure Foreign Emoluments Clause.

Recently, the Foreign Emoluments Clause has enjoyed a surprising intellectual revival. This revival did not come about in response to a scandal or controversy connected to any specific foreign gifts. Instead, the Clause was the heart of a concerted intellectual effort, initiated by two prominent legal academics, Professors Lawrence Lessig and Zephyr Teachout, to rewrite the history of the Philadelphia Convention and our understanding of the Framers’ original intentions. As the new view has it, this Clause, in conjunction with other clauses, was part of the Framers’ anti-corruption project and that collectively these clauses gave rise to an implicit structural nontextual anti-corruption constitutional principle.

Other nontextual constitutional principles—such as separation of powers and federalism—have long been recognized, and such principles carry considerable weight, both in judicial decision-making and in scholarship. If an anti-corruption principle of similar weight were judicially recognized, then this principle—according to its intellectual proponents—would permit Congress to regulate contributions to congressional (and presidential) election campaigns, notwithstanding competing First Amendment concerns relating to freedom of association and free expression. Indeed, the new scholarship, and its focus on the Framers’ anti-corruption concerns, were cited favorably by the four dissenting Supreme Court Justices in Citizens United v. Federal Election Commission (2010) (Stevens, J.). But in his concurrence, Justice Scalia rejected the dissent’s position, in part, because the purported anti-corruption principle leaves “no limit to the Government’s censorship power.”

I think the new scholarship’s focus on the Framers’ deep concern in regard to bribery, divided loyalties, and corruption is entirely correct. The problem for the new scholarship is that the Framers’ abstract corruption-related concerns are not our law—the text of the Constitution is our law.

When turning to the Foreign Emoluments Clause’s Office . . . under the United States language, the new scholarship must confront a difficult interpretive question: does the Clause’s Office-related language apply to elected federal positions: e.g., members of Congress and the Presidency? If there are significant gaps within the reach of the Clause, that is, if the scope of the Clause’s Office-language reaches only appointed, as opposed to elected, federal positions, then it becomes difficult, if not impossible, to make the argument that the newly discovered nontextual anti-corruption constitutional principle founded on this Clause (and on other similarly worded clauses) extends or should extend to elected positions. The new scholarship’s nontextual anti-corruption principle cannot or ought not extend beyond the actual language of the Clause, particularly where, as here, the Framers could have easily added language (or used other suitable and more general language) making the Foreign Emoluments Clause squarely applicable to some or all elected positions.

Traditionally, precedents established by President George Washington and his administration carry great weight. President George Washington accepted and kept two diplomatic gifts, but he neither asked for nor received congressional consent. Washington’s conduct was widely reported in the press. So it would seem to indicate that he, his administration, Congress, and the public did not believe that the Clause applied to the presidency.

This interpretation is confirmed by Secretary Hamilton’s list. Hamilton was asked by the Senate to produce a financial statement listing all persons holding Office . . . under the United States and their salaries. Members of Congress were not on the list, nor was the President. With all due respect to Professor Lessig’s and Professor Teachout’s revised, modern understanding of the history and scope of the Constitution’s Foreign Emoluments Clause, Washington’s understanding, Hamilton’s understanding, and their eighteenth century contemporaries understanding must count for more. Because the original public meaning of the Foreign Emoluments Clause never embraced state or federal elected positions, any nontextual anti-corruption constitutional principle, to the extent one can be inferred from the Constitution’s structure and the Framers’ intent, cannot or, at least, should not reach elected positions. Thus, if Congress intends to regulate contributions to federal election campaigns, it cannot rely on the Foreign Emoluments Clause as a source of authority to do so. 

Seth Barrett Tillman Lecturer, Law, National University of Ireland, Maynooth

The Constitution places the power of the purse in Congress: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . .” In specifying the activities on which public funds may be spent, Congress defines the contours of federal power. This requirement of legislative appropriation before public funds are spent is at the foundation of our constitutional order.

Appropriations and Constitutional Separation-of-Powers

The Appropriations Clause is not technically a grant of legislative power, because pursuant to the Necessary and Proper Clause (Article I, Section 8, Clause 1), Congress clearly has the power to specify the objects, amounts, and timing of federal spending—even if there were no Appropriations Clause. If Congress could not limit the Executive’s withdrawing of funds from the Treasury, then the constitutional grants of power to Congress to raise taxes (Article I, Section 8, Clause 1) and to borrow money (Article 1, Section 9, Clause 2) would be for naught because the Executive could effectively compel taxing and borrowing by spending at will. Rather, the Appropriations Clause creates a legislative duty that Congress exercise control and assume responsibility over the federal fisc. Congress’s “power of the purse” is at the foundation of our Constitution’s separation of powers, a constitutionally mandated check on Executive power. 

The Appropriations Clause would appear to categorically enjoin the President and federal agencies to spend funds only as appropriated by Congress. Even where the President believes that federal spending is urgently needed, spending in the absence of appropriations is constitutionally prohibited. Of course, where an emergency exists, a President may decide that principles more fundamental than the Constitution’s appropriations requirement justify spending. For instance, at the outbreak of the Civil War—with the Nation itself at risk—Lincoln ordered the expenditure of two million dollars in federal funds in advance of appropriations.

Moreover, despite the categorical imperative of the Appropriations Clause, it would seem that Congress itself is constitutionally obligated to provide funding necessary for the President to undertake Executive powers specifically granted in Article II—to receive ambassadors, act as Commander in Chief, negotiate treaties, grant pardons, and the like. If Congress fails to provide necessary funds, then the grants of power to the President are themselves for naught. Scholars disagree on the extent to which Congress may use appropriations limitations to control the President’s exercise of discretion in carrying out his or her duty to “execute the law,” especially in the area of national security—though all agree that Congress may not, under the guise of exercising its “power of the purse,” interfere with indispensable executive (or judicial) functions. Nor may the President frustrate congressional mandates by refusing to spend directed funds.

The constitutional processes for resolving such an impasse may well be political; no federal court has ever ordered Congress to appropriate funds for the Executive Branch (or for the Judicial Branch), whereas federal courts have exercised authority to direct state fiscal operations in order to effectuate federal constitutional guarantees, such as in the school-busing desegregation cases. On rare occasions, as in the case Train v. City of New York (1975), federal courts have also intervened to say that a President has no authority to withhold funds.

Appropriations: Limits on Amount, Object, and Duration

There are other critical aspects of the Appropriations Clause. An appropriation is often thought of as the specification of an amount of money. But an appropriation is more than a limitation as to how much money may be spent.  The “Appropriations” required by the Constitution also must specify the powers, activities, and purposes—what we may call, simply, objects—for which the funds may be used. The specification of these objects is sometimes in an appropriations act itself (a so-called “rider”), but more usually is in the non-appropriations legislation establishing federal agencies or continuing particular programs—often called “authorization” acts. Critically, the mere creation of an agency or authorization of an activity does not, by itself, permit expenditure of federal funds. Spending requires another kind of authorization—that is, an appropriation.  

Congress has long codified this object requirement, requiring that “[a]ppropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.” The latter phrase refers primarily to a variety of statutes that give executive agencies limited authority to “reprogram” line items within an appropriation under certain conditions. This practice does not contravene the Appropriations Clause, because reprogramming authority effectively expands the objects for which the appropriations are made.

Another statute codifies the concept that appropriations must be spent within the time period specified by Congress. The Constitution specifically provides that the duration of appropriations for the “army” must be limited to two years (Article I, Section 8, Clause 12). From the First Congress, operating funds for federal agencies have usually been appropriated annually, but larger capital projects may have longer appropriation durations.

Is “Backdoor Spending” Constitutional?

There are a variety of other forms of federal spending authority besides statutes called “appropriations.” For instance, Congress has often authorized agencies to “obligate” federal funds which have not yet been appropriated. Such obligation authority is necessary because federal agencies subject to annual appropriations often must enter into multi-year contracts. There is no violation of the Appropriations Clause as long as funds are not paid until appropriated.

In other statutes, Congress has indefinitely authorized federal agencies to spend Treasury funds or special-purpose taxes, fees, or forfeitures, without separate appropriation of such funds. Such “backdoor” spending, as it is often called, is usually without limitation as to amount or duration of spending but usually has effective limitations as to object. Payment of interest on the national debt has been “indefinitely” (no limitation as to amount) and “permanently” (no limitation as to duration) appropriated since 1847. Statutory entitlement programs—such as Social Security, unemployment payments, and certain agricultural subsidies—are likewise usually funded by an indefinite and permanent appropriation in the statute creating the program itself. The constitutional function of “Appropriations made by Law”—a legislative check on the Executive Branch and hence on the exercise of federal authority—is performed, if at all, at the creation of the entitlement program and by future Congresses in setting the rates and amounts of agency receipts and payments.

However, at times Congress has created spending authority not only without “amount” or “time” limitations, but also arguably without an effective “object” limitation—where, for instance, the agency has broad, discretionary authority in some particular policy area. In such circumstances, although spending has been approved by Congress, it is not clear that the functional purposes of the appropriations clause have been met. There is, for instance, an indefinite, permanent appropriation for national intelligence activities, the “objects” of which are only partially specified in federal statutes. One questionable form of spending authority is open-ended authority to receive and spend donations and gifts (even gifts conditioned for a particular purpose), which Congress has granted to a variety of federal agencies, including the State Department. Loan guarantees and insurance schemes, like mortgages backed by the Federal Home Loan Banks, similarly function outside the appropriations process, notwithstanding the federal financial liability incurred.

The Federal Reserve until recently was the only federal agency that has been given permanent, plenary authority to set its own budget, without congressional oversight; this approach has been justified because of the need to have a politically independent agency in charge of monetary fiscal policy. Congress effectively gave the same authority to the Consumer Financial Protection Bureau, created in 2010, by requiring the Federal Reserve to fund it; there have been recent efforts to subject that agency to the usual annual appropriations process.

The Statement and Accounts Clause

Article I, Section 9, Clause 7 has a second provision, which complements the requirement of appropriations: “and a regular Statement and Account of the Receipts and expenditures of all public Money shall be published from time to time.” Like the appropriations requirement, this requirement states not a power but a legislative duty that has been interpreted to require an annual budget. Justice Story explained the connection between the two requirements as well as anyone has, in Commentaries on the Constitution in 1840:

The power to control and direct the appropriations constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public speculation. . . . [A]nd to make their responsibility complete and perfect, a regular account of the receipts and expenditures is required to be published, that the people may know, what money is expended, for what purposes, and by what authority.

Since the Founding Era, Congress has largely delegated its duty under the Statement and Accounts Clause to Executive Branch agencies such as the Treasury Department and later the Office of Management and Budget. Those agencies in turn (and in some cases, by statutory mandate) have failed to include or report in full on a variety of “backdoor” federal spending programs, federal insurance liabilities, and spending and borrowing by semi-autonomous federal entities. Certain national security spending is also excluded from the annual budget process. While the Congressional Budget Office and Government Accountability Office seek to provide further budget accountability as agents of the legislative branch, the Statement and Accounts Clause has de facto fallen in the purview of the Executive.

The two requirements discussed here are not self-enforcing and likely not judicially enforceable. They are only as good as Congress’s determination to abide by them.

Kate Stith Lafayette S. Foster Professor of Law, Yale Law School

The Spending Clause gives Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and the general Welfare of the United States.” Beginning in the 1790s, there has been a longstanding debate over the scope of the spending power and the meaning of “general welfare.” James Madison and other Democratic-Republicans argued that the Clause authorizes spending only when it implements other powers granted to Congress in Article I of the Constitution. Alexander Hamilton and the Federalists took a broader view. Hamilton famously argued that the Clause authorized spending, so long as “the object, to which an appropriation of money is to be made, must be general, and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.” While Hamilton did not advocate a completely unbounded interpretation of “general welfare,” under which Congress could spend money for virtually any object it considers beneficial, he and the Federalists did believe that the Clause authorized a wide range of spending for purposes that go beyond Congress’s other enumerated powers, so long as they were sufficiently “general.”

The debate between the Madisonian and Hamiltonian views continued throughout much of the nineteenth and early twentieth centuries. As a general rule, Democratic presidents and members of Congress tended to adopt positions similar to Madison’s, or slightly broader. Thomas Jefferson, Madison, James Monroe, James Polk, James Buchanan, and Grover Cleveland all opposed bills authorizing spending on local infrastructure and disaster relief projects, citing constitutional objections. By contrast, the Federalists, the Whigs, and the Republicans tended to take a broader view of congressional power, closer to Hamilton’s position. Whig leader Henry Clay, for example, argued that the Clause authorized his proposal for a wide-ranging “American System” of canal and roadbuilding.

For most of this time, federal grants to state governments were relatively rare, and only a small portion of state finances. The grants that were enacted were mostly—though not entirely—for purposes that could be readily defended even on Madisonian grounds, such as national defense and relief of state debts incurred in the Revolutionary War. Federal grants to state governments became more important in the twentieth century, and the constitutional controversies over them became more significant—especially when it comes to “conditional” grants, which require states to comply with federal dictates of various kinds in order to qualify for their share of the funds. States today rely heavily on federal spending to provide public services; federal funds account for just under a third of the average state’s budget. The more conditions Congress can place on the receipt of federal funds, the more control Congress can exercise over the operation of state governments. 

In two 1923 cases, Massachusetts v. Mellon and Frothingham v. Mellon, the Supreme Court sharply limited the ability of state governments and individual citizens to challenge such grants. The Court ruled that challengers lacked standing unless the spending conditions inflicted “some direct injury suffered or threatened.” Applied expansively, this principle might make it almost impossible for either states or individual citizens to challenge most conditional spending programs. However, the Court has allowed challenges to some conditional programs in cases where states and individuals demonstrate sufficient potential “injury” to satisfy the Justices.

The Court’s first key case on the scope of the Spending Clause came in 1936. In United States v. Butler (1936), the Court invalidated the first Agricultural Adjustment Act (AAA), a statute that paid farmers to reduce their crop production. The Court expressly took Hamilton’s side of the debate with Madison. It declared, “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” 

Nonetheless, the Court held the AAA unconstitutional on the ground that “[t]he act invades the reserved rights of the states.” Under the Commerce Clause doctrine of the time, evidenced in cases like United States v. E. C. Knight Co. (1895), Congress lacked the power to reduce agricultural production directly. The Court concluded that Congress could not pay farmers to achieve the same ends indirectly. Although the Butler Court said it was adopting the Hamiltonian position, a strong case can be made that its decision was more consistent with the logic of the Madisonian position.

Since Butler, the Court has repeatedly endorsed Hamilton’s position—and has arguably gone beyond Hamilton in broadly deferring  to Congress’s determination of what expenditures serve the “general welfare,”  as in South Dakota v. Dole (1987). Butler’s invalidation of the AAA, by contrast, is now an outlier.

The judiciary’s focus has turned to evaluating the conditions federal spending statutes place on state governments. The Court has invoked three possible constraints on federal grants, with mixed results. First, the Court has required that the federal government make its conditions clear at the time the states accept the grants. Arlington Central School District v. Murphy (2006). This rule makes it harder to impose grant conditions by requiring precise drafting. But it does not actually stop Congress from imposing any conditions it wants, so long as they are clear enough. The Court has, in a few cases, ruled against the federal government in grant cases, because the condition in question wasn’t sufficiently clear. 

Second, the Court said that a condition might be unconstitutional if it was too loosely related to the purpose of the grant to which it was attached. But a grant’s purpose can typically be described broadly enough to ensure that the relatedness doctrine imposes few meaningful limitations. In South Dakota v. Dole, for example, the Court upheld a law conditioning receipt of federal highway funds on states’ raising their drinking ages to 21, because both the funding and the condition promoted “safe interstate travel.”

Third, the Court indicated that Congress’s “financial inducement” might sometimes be unconstitutionally “coercive.” But the Court never actually ruled that a condition coerced the states until its 2012 decision addressing the Affordable Care Act (ACA), NFIB v. Sebelius. One provision of the ACA required states that participated in Medicaid to expand their Medicaid programs to all adults with incomes up to 133 percent of the federal poverty level. In a ruling endorsed by seven of nine justices, the Court held that the threatened loss of all Medicaid funds to states that refused to expand their programs rendered the offer unconstitutionally coercive. 

Chief Justice Roberts’s pivotal opinion pointed to three aspects of the Medicaid expansion he found crucial. First, an extremely large amount of money was at stake, making the threat a “gun to the head” of states. Federal Medicaid funding accounts for some 10 to 20 percent of the average state’s revenues. Second, the expansion “transformed” Medicaid from the provision of health care for particular categories of needy people (the elderly or those with disabilities or with children) to a universal guarantee of health care for relatively poor. Third, states could not have anticipated, when they entered Medicaid many years ago, that Congress would later condition continued participation in that program on entry into the “dramatically” transformed program created by the ACA. 

NFIB is still the only time that a majority of the Court has invalidated a spending condition because it coerced the states. It remains unclear what, if any, other statutes might prove coercive on the Chief Justice’s analysis, which blended concerns about the uniquely large stakes with aspects of the notice and relatedness requirements. But the Court’s decision does show that there remain some judicially enforceable limits on the conditional spending power.

Further Reading:

Fiscal 50: State Trends and Analysis, PEW Charitable Trusts (July 28, 2016).

Samuel R. Bagenstos Frank G. Millard Professor of Law, University of Michigan Law School

Ilya Somin Professor of Law, Antonin Scalia Law School, George Mason University

The New Deal and Great Society, and the mark they placed on the shape of American government, would not have been possible without the Spending Clause. The Social Security Act, and all of its component programs—old age, survivors’, and disability insurance; unemployment insurance; the old Aid to Families with Dependent Children program and its successor, Temporary Assistance for Needy Families; Medicare; Medicaid; the Children’s Health Insurance Program; and more—all find their source of constitutional authority in the Spending Clause.

So too with key federal education programs, such as the Elementary and Secondary Education Act (which offers aid to states to provide to their schools), the Higher Education Act (which, among other things, supports financial aid for college students), and the Individuals with Disabilities Education Act (which guarantees an education to children with disabilities). Federal housing and employment programs also rest on the Spending Clause, as do the vast federal investments in our transportation infrastructure that took off when President Eisenhower signed the Federal-Aid Highway Act in 1956. And some of the most far-reaching and important civil rights statutes—Title VI of the Civil Rights Act of 1964, which prohibits race discrimination; Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education; and Section 504 of the Rehabilitation Act of 1973, which prohibits disability discrimination—were adopted under Congress’s spending power as well.

Despite the efforts of some influential academics—and lawyers for states who have brought litigation based on those academics’ theories—the Supreme Court has done very little to limit Congress’s exercise of its power to attach conditions to federal funds under the Spending Clause. Even the 2012 NFIB v. Sebelius decision—which represents the one time the Court has invalidated a federal spending condition as coercive—involved such an extreme statute that it is unlikely to impose much of a limitation on Congress’s power. 

One’s attitude about the failure of the courts to impose more meaningful limits might well depend on how one feels about the vast expansion of the American federal government since the 1930s. It is no surprise that those who, like me, are largely comfortable with the Court’s jurisprudence are also generally supportive of the changes that the New Deal and Great Society made to the shape of American government. Nor is it a surprise that those who seek more judicially-imposed limits on the spending power are skeptical of the New Deal and Great Society. 

I believe that the Court has acted sensibly in refusing to place more significant limits on Congress’s use of the spending power. There are two reasons for this conclusion. First, since the New Deal our constitutional system has settled on the position that it is for Congress—not the courts—to determine what is in the public interest. If the Supreme Court were to reject spending laws on the ground that those laws did not fit the Court’s understanding of the “general welfare,” it would subvert that important protection of democratic decisionmaking.

Second, conditional federal spending affirmatively advances the goals of dual federalism. There are many policies that people in most if not all states would prefer to implement, but that collective-action dynamics keep any individual state from implementing on its own. That is the point Justice Cardozo made in the Steward Machine Co. v. Davis (1937) case that upheld the federal unemployment insurance program under the Spending Clause: many states wanted to adopt unemployment insurance systems, but they feared that if they imposed the taxes necessary to pay for such systems they “would place themselves in a position of economic disadvantage as compared with neighbors or competitors.” A federal program that gave all states an incentive to participate overcame that collective-action dynamic and facilitated adoption of a policy that was welcomed in all corners of the Nation. The original Medicaid program, in which the federal government offered states money to provide health insurance for poor people, helped to overcome a similar dynamic.

It would be perfectly possible for the federal government simply to bypass the states and provide services like these itself. But providing these services through the mechanism of conditional grants serves important purposes. By giving states key responsibilities for implementing federal policies, conditional spending helps to ensure that programs will be administered by officials who are geographically closer and more politically responsive to local concerns than are officials in the Nation’s Capital. States can mold aspects of their implementation to adapt to unique local conditions or experiment with new administrative approaches—and state officials can seek, and in recent years have often obtained, waivers of federal program rules to do so.

Critics of conditional spending worry that Congress will use the Spending Clause to bypass the limitations on its power to regulate under the Commerce Clause, the Reconstruction Amendments, and other constitutional provisions. But the conditional-spending power contains its own built-in limit—Congress cannot enlist a state’s participation unless it is willing to pay what the state demands. Given the realities of modern federal budget politics, that built-in limit gives states key leverage in negotiating the terms of state-federal cooperative programs—and states have proved remarkably sophisticated in using that leverage. (Take a salient recent example: under the ACA’s Medicaid expansion, Congress agreed that the federal government would pay 100 percent of the states’ costs initially, dropping to 90 percent after a few years—an extraordinarily generous offer for a program that provides important services to state residents.) When a federal program relies on the conditional spending power, then, it is especially likely to take a form that is respectful of state interests.

The Spending Clause serves important purposes in our federal system, and Congress has used its power under that Clause to address significant public interests. The Supreme Court has been correct to give Congress a wide berth to do so.

Further Reading:

Lynn A. Baker & Mitchell N. Berman, Getting Off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It to Do So, 78 Ind. L.J. 459 (2003).

Samuel R. Bagenstos, The Anti-Leveraging Principle and the Spending Clause After NFIB, 101 Geo. L. J. 861 (2013).

Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 Duke L. J. 345 (2008).

Samuel R. Bagenstos, Federalism by Waiver After the Health Care Case, in The Health Care Case: The Supreme Court's Decision and its Implications (2013).

Lynn A. Baker, Conditional Federal Spending After Lopez, 95 Colum. L. Rev. 1911 (1995).

Erin Ryan, Negotiating Federalism, 52 B.C.L. Rev. 1 (2011).

Samuel R. Bagenstos Frank G. Millard Professor of Law, University of Michigan Law School

The Spending Clause authorizes Congress to raise taxes and spend money “to pay the Debts and provide for the common Defence and the general Welfare of the United States.” These words cannot possibly justify the modern doctrine that the term “general welfare” authorizes Congress to spend money for virtually any purpose it wants.

If, as the Supreme Court has held since the 1930s, the General Welfare Clause gives Congress the power to spend for almost any purpose it considers beneficial, there would have been no need to give it the authority to spend for “the common Defence” or to pay federal debts. Both purposes are obviously beneficial to the Nation. And both are rendered superfluous by the modern interpretation of “general welfare.”

The modern approach runs counter to the original meaning of the Constitution, as well as the text. It makes a mockery of the Federalists’ repeated assurances that the Constitution sets strict limits on federal power, including the power to spend. In The Federalist No. 41, for example, James Madison emphasized that the phrase “general welfare” was limited by the enumeration of other powers of Congress, and did not give it “a power to legislate in all cases whatsoever.”

Even Alexander Hamilton’s broader construction of the Clause, which held that it authorized spending for all objects that are “general, and not local; . . . and not being confined to a particular spot,” falls well short of the modern approach. Grants to specific state and local governments are, almost by definition, confined to a “particular spot.” In any event, however, Hamilton’s theory is itself flawed, because it too tends to make the power to spend for defense and debt payments redundant, especially the latter. Such spending is almost always “general” in his sense of the term.

Defenders of the modern approach to the spending power usually focus on pragmatic “living constitution” considerations, rather than text and original meaning. They claim that a virtually unlimited spending power is necessary for effective policymaking in the modern world. Even if we assume that it is proper for courts to consider such policy considerations, they are dubious on their own terms.

Unconstrained federal spending since the 1930s has caused considerable harm. Federal subsidies for local pork barrel projects, such as the notorious “bridge to nowhere,” have wasted resources and skewed public works priorities. Federal grants to state governments and interest groups have often created and enforced cartels that harm consumers, especially the poor. For example, the Agricultural Adjustment Acts of 1935 and 1938— which led to Supreme Court decisions vastly expanding the scope of congressional power—paid farmers to artificially reduce production. This increased the price of food during the Great Depression, at a time when millions of Americans were already having great difficulty making ends meet, or even suffering from malnutrition. Federal farm subsidies and associated production restrictions continue to inflate the price of food to this day, disproportionately harming the poor in the process. The growth of massive entitlement programs poses a severe threat to our fiscal future, often subsidizing the relatively affluent at the expense of the relatively poor.

Advocates of unconstrained spending power contend that it is necessary to prevent collective action problems among the states, enabling them to cooperate in situations where they would otherwise find it impossible. But such power also routinely creates dangerous collective action problems, benefiting powerful special interests at the expense of the less well-organized general public. Individual states acting on their own could never have established nationwide agricultural cartels that fleece consumers. Where genuine interstate collective action problems exist, they can usually be addressed without giving Congress a blank check to spend for whatever purposes it wants.

The widespread use of federal grants to state governments undermines beneficial diversity and competition between state and local governments, which also often helps the poor and oppressed. States and localities that can rely on the federal government for funds have less incentive to innovate and to adopt policies attractive to people “voting with their feet.”

In a nation as large, diverse, and complex as the modern United States, federally imposed standardization of policy—facilitated by conditional spending grants—is often harmful. Indeed, this is more true today than at the time of the Founding, when the nation was smaller and less diverse, and government policy much simpler. In this respect, a pragmatic “living Constitution” approach to constitutional interpretation argues for tightening constitutional limits on federal power, rather than loosening them.

In some instances, states have refused to accept ill-conceived conditional spending grants. But the vast majority of the time, state governments find it hard to resist the temptation of federal funds, especially if they are being taxed to provide similar grants to other states that compete with them. In many cases, widespread voter ignorance makes it hard for the electorate to monitor these complex programs.

Even most originalists recognize that the Supreme Court cannot and should not strike down all federal programs that go beyond the text and original meaning of the Spending Clause. Some, most notably Social Security and Medicare, are too well-entrenched to be reversed by judicial action alone. Moreover, it would be unjust to suddenly pull the rug out from under the many people who rely on them. But the Court can still take incremental steps in the direction of enforcing constitutional limits on federal power. For example, it can hold new unconstitutional programs to a higher level of scrutiny than existing well-established ones, on which many people rely. Such a distinction is already implicit in the Court’s ruling in NFIB v. Sebelius (2012), where the Justices invalidated a key part of the Affordable Care Act in part because it was a massive step beyond the existing Medicaid program. It can also strike down at least some of the many blatant cases of special-interest spending that go beyond even the Hamiltonian position.

Enforcement of a tighter conception of “general welfare” is not only practical; it is easier for judges to do than administration of the Court’s current approach to federal grants to state governments, which requires extraordinarily difficult determinations about whether a particular grant condition is “coercive” or insufficiently clear. Unlike “coercion,” the phrase “general welfare” is actually in the Constitution, and can be analyzed using conventional methods of legal interpretation.

From the standpoint of both originalism and pragmatic living constitutionalism, the Court’s Spending Clause jurisprudence is badly flawed. Fortunately, perpetuation of the status quo and complete judicial reversal of the modern approach are not the only two options available. We can and must get beyond this false choice.

Further Reading:

Ilya Somin, Federalism and Collective Action, JOTWELL (June 20, 2011).

Ilya Somin, Foot Voting, Federalism, and Political Freedom, Nomos: Federalism and Subsidiarity (2014).

Ilya Somin, Voting With Your Feet Works for the Poor, Too, The Volokh Conspiracy (Oct. 26, 2013).

Ilya Somin, Democracy and Political Ignorance: Why Smaller Government Is Smarter (Stanford University Press, 2nd. ed. 2016).

Ilya Somin, Closing the Pandora’s Box of Federalism: The Case for Judicial Restriction of Federal Subsidies to State Governments, 90 Georgetown Law Journal 461 (2002).

John Eastman, Restoring the “General” to the General Welfare Clause, 4 Chapman Law Review 63 (2001).

Ilya Somin Professor of Law, Antonin Scalia Law School, George Mason University

In Article I of the Constitution, the Framers vest the legislative authority of the United States government in a bicameral Congress, and over the ten sections of the Article they systematically flesh out the structure, duties, and powers of that Congress. In the early sections of Article I they describe the membership of each House, giving life to the “Great Compromise” of the Constitutional Convention under which each state has equal representation in the Senate but population-based representation in the House of Representatives. In Section 5, they grant Congress the power to govern itself.

Section 5 consists of four separate clauses, each of which addresses different practical aspects of legislative procedure.

The first Clause of Section 5 begins by bestowing on each House the power to “[j]udge” the elections of its own members. After the Civil War there were heated disputes about seating Senators from former Confederate states. But in the modern era, this provision comes into play when there is a challenge to the state-declared winner of an election to the Senate or House. Losing candidates dissatisfied with state recount procedures may petition the relevant chamber of Congress to decide the outcome. These high stakes determinations are immune from judicial review.    

Legislative recounts can be bitterly partisan. For example, a House task force took months to review the 1984 election in Indiana’s “Bloody Eighth” district, and GOP members walked out of the chamber in protest when Democrat Frank McCloskey was declared the winner over Republican Richard McIntyre by four votes out of 233,000 cast. In 1974, the Governor of New Hampshire certified that Republican Louis Wyman won a Senate seat by two votes. Democrat John Durkin sought redress in the Senate. Having conducted its own recount, the Senate Rules Committee reported a resolution that would have seated Durkin, but the resolution died in the face of implacable Republican opposition. Seven months into the new Congress, the Senate declared the seat vacant and sent the matter back to New Hampshire for a fresh election. 

While the House and Senate may decide contested elections, they may not disqualify otherwise duly elected persons who meet Constitutional qualifications for membership. The House sought to do just that when the flamboyant Adam Clayton Powell won re-election to a New York seat. The Supreme Court held that a House of Congress may expel a member (by a two-thirds majority), but cannot exclude him for pre-election conduct. Powell v. McCormack (1969).

The same sentence in this Clause provides that “a majority of each [House] shall constitute a quorum to do business.” Other than roll-call voting, most business in the chambers occurs with only a handful of members in attendance. But at any time any member may question the presence of a quorum, triggering a “quorum call.” During a Senate quorum call, the clerk calls the names of every member to tally attendance. In most cases, the quorum call merely fills gaps between other Senate activities and is not intended to produce an actual quorum. When the Senate is ready to proceed to its business, the quorum call will typically be cut short by unanimous consent.

Neither chamber can conduct business without a quorum, but the Supreme Court long ago held that each House determines whether a quorum is present when a bill passes. Article I, Section 5 contemplates the compelled attendance of absent members, a device rarely utilized in the modern Congress.

The second Clause of Section 5 states that “Each House may determine the Rules of its Proceedings.” This is an important provision because legislative rules often influence substantive outcomes. For example, the House Rules Committee determines which amendments may be offered to particular bills, thus shaping the debate on and ultimate content of legislation. Precedents interpreting Senate rules dictate preferential recognition of the Majority Leader over other Senators, a significant advantage for the Leader in setting the chamber’s agenda. 

Senate Rule 22 is a high-profile example of the power of legislative rulemaking. That rule establishes a three-fifths threshold (rather than a simple majority) to invoke “cloture” and thereby limit debate. In recent years, each party has accused the other of abusing the right of extended debate. Leaders of both parties threatened to change Rule 22 unilaterally to insulate certain questions from the super-majority requirement of cloture. A Republican threat to utilize this co-called “nuclear option” failed to materialize in 2005. Eight years later, Democrats who had opposed the nuclear option when they were in the minority successfully invoked it when they were in the majority to speed confirmation of nominees. Meanwhile litigation brought to challenge the constitutionality of Rule 22 failed because the Constitution explicitly reserves questions of Congressional self-governance to the Senate and House themselves. See, e.g., Common Cause v. Biden (D.C. Cir. 2014).  

This second Clause also gives each legislative chamber the power to “punish its Members for disorderly behavior, and, with the concurrence of two thirds, expel a Member.” In all of American history, only five House members and twenty Senators (most during the Civil War era) have been expelled from Congress, but many more have been punished with censure or reprimand for ethical misconduct. Most recently, James Traficant of Ohio was expelled from the House in 2002 following his conviction for bribery; five years earlier Senator Bob Packwood of Oregon resigned following the recommendation of the Ethics Committee that he be expelled for sexual harassment and related misconduct. It is important to note that either chamber can exercise the power of expulsion without waiting for a criminal conviction. Thus, even though the House acted on Traficant after his conviction, no criminal charges had been brought against Packwood.

The third Clause of Section 5 states that each House “shall keep a Journal of its Proceedings” which must be published “from time to time.” In an era of Internet live streaming, the daily publication of the Congressional Record may seem quaint. But the unequivocal constitutional command of transparency and public access in Article I, Section 5 is actually a cornerstone of American democracy. The Clause recognizes that secrecy might sometimes be needed, but moments when the C-SPAN cameras are turned off, for example when the Senate deliberates as a jury about articles of impeachment, are exceedingly rare. The Journal of each chamber is the official record of its proceedings, supplemented today by committee reports and many other forms of public access.

This Clause also enshrines the value of public accountability: a mere one-fifth of the members present on the floor of either chamber may demand a recorded roll call vote. Roll call votes in the House are tallied electronically, but Senate clerks call the names of each of the 100 members and record the outcome by hand. A Senate roll call vote is one of the most vivid demonstrations of representative democracy. 

The final Clause of Section 5 says that “[n]either 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.” This archaic-sounding provision is a necessary element of bicameralism; the Founders were worried that the will of one House might be thwarted by the other’s mischievous absence. 

House and Senate leaders typically work out a joint or concurrent resolution providing for adjournment, but some partisan gamesmanship may prevent it. For example, in 2007, Senate Majority Leader Harry Reid announced that the Senate would hold pro-forma sessions every three days so that President George W. Bush could not make recess appointments. In 2012, the Republican-led House prevented the Senate from adjourning, so that President Barack Obama could not make such appointments. The Supreme Court recently reminded the president that it is the prerogative of Congress to determine when it is in recess. NLRB v. Noel Canning (2014).

Section 5 of Article 1 does not contain all of the “How To” instructions for legislative proceedings. The impeachment process, for example, is set forth in Section 3. The process for overriding presidential vetoes appears in Section 7. Several constitutional amendments have revised legislative procedures, such as the Seventeenth Amendment providing for the direct election of Senators. But Article 1, Section 5 of the Constitution is important because it establishes some of the most fundamental building blocks of our time-honored system of government. 

Martin B. Gold Partner, Capitol Counsel LLC

Ronald Weich Dean and Professor of Law, University of Baltimore School of Law

Article 1, Section 9, Clause 1, is one of a handful of provisions in the original Constitution related to slavery, though it does not use the word “slave.” This Clause prohibited the federal government from limiting the importation of “persons” (understood at the time to mean primarily enslaved African persons) where the existing state governments saw fit to allow it, until some twenty years after the Constitution took effect. It was a compromise between Southern states, where slavery was pivotal to the economy, and states where the abolition of slavery had been accomplished or was contemplated. 

There is a sense in which the Clause is no longer constitutionally relevant since it expired in 1808. At the time the Constitution was adopted, there was no guarantee whether or when the federal Congress would act to prohibit the importation of slaves. So there is a legitimate inquiry about what took place in the political realm over the 20-year period between the adoption of the Constitution and 1808. During that time period, popular support for the abolition of the slave trade and slavery itself increased both in the United States and in other countries. There was more support for restricting the slave trade initially than slavery itself in this time period. In the 1790s, Congress passed statutes regulating the trade in slaves by U.S. ships on the high seas. The United Kingdom and other countries also passed legislation restricting the slave trade, increasing international pressure on the United States to likewise curb the practice.

In December 1806, President Thomas Jefferson’s annual message to Congress anticipated the upcoming expiration of Article 1, Section 9, Clause 1. His message said, “I congratulate you, fellow-citizens, on the approach of the period at which you may interpose your authority constitutionally to withdraw the citizens of the United States from all further participation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country have long been eager to proscribe.” Does it seem odd that a slave owner was supporting this legislation?

In 1807, the U.S. Congress passed a statute prohibiting the importation of slaves as of the first constitutionally-allowable moment of January 1, 1808. This act was signed by President Jefferson and entered into force in 1808, rendering this part of the Constitution irrelevant except as a historical curiosity. 

This in itself is a fascinating exception to constitutional change, in which a provision came with a built-in expiration date, after which the powers of the federal government would no longer be restricted. Note also that the Clause itself does not grant Congress the power to restrict the slave trade, but Congress presumably used the foreign and interstate commerce powers it had been given in Article 1, Section 8, to do so. 

In an important sense, there is a settled meaning of the Clause: it is no longer relevant in the same sense, for example, that the First Amendment is still constitutionally relevant. But the Clause, although constitutionally inoperative for over 200 years, still remains there for all to see and read. It is in the Constitution. And so the Clause, in a larger sense, has a continuing cultural and political constitutional relevance in the discourse of the morality and profitability of the international trade in human beings. People rightfully wonder today, and earlier, why is such a Clause there in the first place and to whom does it refer? We do know the Framers are talking about the slave trade, right? How attentive should we be to the specific language of the Clause or does the language actually inform us about what is trying to be conveyed? And why is this Clause the opening clause of Article 1, Section 9 of the Constitution?

Gordon Lloyd Senior Fellow at the Ashbrook Center, Robert and Katheryn Dockson Professor of Public Policy and Professor Emeritus, Pepperdine University

Jenny S. Martinez Professor of Law and Warren Christopher Professor in the Practice of International Law and Diplomacy, Stanford Law School

Introduction

Sections 4, 5, and 6, of Article VII of the Committee of Detail Report, August 6, 1787, restrained the 18 powers granted to Congress. Included in that list of powers was the power to regulate international commerce. Five delegates wrote this first draft of the Constitution: Nathaniel Gorham from Massachusetts, Edmund Randolph from Virginia, James Wilson from Pennsylvania, Oliver Ellsworth from Connecticut, and John Rutledge from South Carolina.                                                                     

Article VII, Sections 4, 5, and 6

Section 4. No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited.

Section 5. No capitation tax shall be laid, unless in proportion to the census herein before directed to be taken.

Section 6. No navigation act shall be passed without the assent of two-thirds of the members present in each House.

According to Section 4, what we now call the slave trade is completely 1) in the hands of each state and 2) out of the reach of Congress forever. Note that the word “slavery” is not mentioned.

The Three Sides

Three sides emerged in late August: principle, interest, and politics.

1. John Langdon “was strenuous for giving the power to the general government. He could not, with a good conscience, leave it with the States, who could then go on with the traffic.” John Dickinson, Luther Martin, George Mason, James Madison, Gouverneur Morris, James Wilson, and Edmund Randolph also opposed the slave trade on the grounds of principle. Martin argued that the slave trade was “inconsistent with the principles of the Revolution, and dishonorable to the American character, to have such a feature in the Constitution.” Mason stated that “every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country.”

2. Hugh Williamson, from North Carolina, reminded the delegates of political reality. “The Southern States could not be members of the Union, if the clause should be rejected.” He added: “both in opinion and practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in South Carolina and Georgia on those terms, than to exclude them from the Union.” Rutledge, chairman of the Committee of Detail, proclaimed: “Religion and humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is, whether the Southern States shall or shall not be parties to the Union. . . . If the Convention thinks that North Carolina, South Carolina, and Georgia, will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest.” Charles Pinckney agreed: “If slavery be wrong, it is justified by the example of all the world.”

3. Roger Sherman from Connecticut thought “it was better to let the Southern States import slaves than to part with them, if they made that a sine qua non.” He observed that the abolition of slavery seemed to be going on in the United States, and that the good sense of the several States would probably by degrees complete it. Mr. Ellsworth, also a member of the Committee of Detail, articulated the political position: the morality or wisdom of slavery are considerations belonging to the States themselves. Moreover, “slavery in time, will not be a speck in our country.” Massachusetts also sought accommodation. King said the whole “subject should be considered in a political light only.”

What is to be Done?

Mr. G. Morris “wished the whole subject to be committed, including the clauses relating to taxes on exports and to a navigation act. These things may form a bargain among the Northern and Southern States.”

The delegates appointed to a Committee of Eleven were Langdon, King, Johnson, Livingston, Clymer, Dickinson, L. Martin, Madison, Williamson, C.C. Pinckney, and Baldwin.

What sort of “bargain” would this Committee recommend? Langdon, King, Dickinson, Martin, and Madison opposed the Slave Clause provision on principle. Williamson, Pinckney, and Baldwin supported the Clause on the ground of interest. Perhaps Livingston, Johnson, and Clymer could help create an accommodation.

Governor Livingston from the Committee delivered the Report:

“Strike out so much of the fourth Section as was referred to the Committee, and insert, ‘The migration or importation of such persons as the several States, now existing, shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1800; but a tax or duty may be imposed on such migration or importation, at a rate not exceeding the average of the duties laid on imports.’ The fifth section to remain as in the Report. The sixth Section to be stricken out. . . . ”

Conclusion

The Committee permitted Congress to regulate the slave trade after 1800 and impose a tax on such importation. Moreover, the Clause was confined to “the several states, now existing” that considered it “proper.” Congress was free to regulate the slave trade in the territories and impose restrictions on new states that entered the Union.

General Pinckney moved to strike out the words, “the year eighteen hundred,” and to insert the words “the year eighteen hundred and eight.” It passed 7-4.

The delegates had moved a long way from never permitting Congress to regulate the slave trade to permitting Congress to regulate the trade after 1808. Madison considered 1800—the birth of a new century—to be the more principled compromise.  New Jersey, Pennsylvania, Delaware, and Virginia voted “no.” They wanted 1800 instead of 1808. 

Thus Article 1, Section 9 of the Constitution: “The migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the legislature prior to the year 1808.” 

Gordon Lloyd Senior Fellow at the Ashbrook Center, Robert and Katheryn Dockson Professor of Public Policy and Professor Emeritus, Pepperdine University

When the Constitution was drafted in 1787, slavery was a major component of the economy and society in the United States. It is odd that the Constitution does not use the word “slavery” in the provisions that most directly respond to the practice. It takes a careful reader to notice the “Importation of Persons Clause” in Article 1, Section 9, Clause 1, which does not mention exactly who are the persons who might be “imported.”

Likewise, the “Three-Fifths Clause” in Article 1, Section 2, Paragraph 3, provides that apportionment of representatives would be based on the population of free persons excluding “Indians not taxed” and “three fifths of all other persons.” Those “other persons” were, of course, the African slaves who made up around a third of the population of the Southern states at that time. The “Fugitive Slave Clause” in Article IV, Section 2, Clause 2, provides that “no person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.” Again, the text studiously avoids the use of the word slavery. Traces of a slave-holding society can be seen in other parts of the early Constitution, from the federal structure of the government including the Senate and limitations on the powers of the federal government, to the protection of property in the Due Process Clause of the Fifth Amendment.

There was obviously deep tension between the practice of slavery and the notion in the Declaration of Independence that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights.” Perhaps the drafters of the Constitution were too embarrassed to use the word “slavery.” Or perhaps, as other historians have argued, the drafters did not want to suggest that slavery was recognized under federal law, but rather existed only as a result of state laws. 

These constitutional provisions related to slavery reflected a compromise between Northern and Southern states that was essential to ratification of the Constitution and formation of the Union, but ultimately a compromise that was unsustainable, as shown finally by the Civil War. 

Political support for banning the slave trade came earlier and was more broadly shared than support for banning slavery itself. The practice of capturing and enslaving free persons in Africa and cruelly transporting them in crowded ships across the Atlantic was viewed by some at that time as more unjust than keeping generations of persons enslaved on plantations in the New World. Indeed, opposition to the slave trade was so strong that the constitution of the Confederacy in the Civil War even prohibited it. There was also international pressure to regulate the slave trade on the high seas, led by the United Kingdom and enforced through a network of international treaties prohibiting the slave trade.

In retrospect, slavery was a crack in the very foundation of the nation, which violently came apart in the constitutional crisis of the Civil War and was only sealed back together with Reconstruction and the Thirteenth, Fourteenth, and Fifteenth Amendments. We can still see the elements of these fissures in law and society today, in the legacy of persistent racial inequality. Just because you don’t mention something and call it by name does not mean it isn’t there.

Jenny S. Martinez Professor of Law and Warren Christopher Professor in the Practice of International Law and Diplomacy, Stanford Law School

The U.S. Constitution has become so familiar to Americans and so influential around the world that it’s easy to forget what a revolutionary document it was at the time of its enactment. Nothing better illustrates this than Article I, Section 2, which established the U.S. House of Representatives. What was extraordinary in 1787 is that Article I, Section 2 provided for direct election of House members “by the People of the several States.” 

Under the Articles of Confederation, delegates to the Confederation Congress were selected as state legislatures directed. Akhil Reed Amar, America’s Constitution: A Biography 64 (2005). Only two states gave the People a say in the selection of delegates. Elsewhere, the state legislatures chose Confederation Congress delegates. While some members of the Constitutional Convention supported giving state legislatures control over the selection of House members, James Madison and James Wilson successfully argued that direct elections were necessary to connect the national government to the people. The Heritage Guide to the Constitution 49 (2005). This was a radical departure from most states’ pre-constitutional practice.

Of course, not all of the people were eligible to vote at the time of ratification. Article I, Section 2 made the qualifications for voting in U.S. House elections the same as those for voting in the larger branch of the state legislature. That effectively excluded women, as well as many free African Americans and Native Americans. It also excluded some white men, who were barred from voting by property ownership requirements that were the norm in 1787.

Some Framers favored making property ownership a qualification for voting in U.S. House elections, but Ben Franklin reminded them that many “common people” had joined the fight for independence. A uniform suffrage requirement was ultimately rejected, due to fears that it would lead some states to reject the Constitution altogether. The compromise—tying the qualifications for voting in U.S. House elections to the qualifications for voting in state legislative elections—allowed roughly two-thirds of white men—but very few others—to vote. See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 15, 23-24 (2000).

Nevertheless, these direct elections were a significant milestone in the development of democracy. Many more people were eligible to vote in U.S. House elections than was the case under English law. In the ensuing decades, states moved rapidly toward universal suffrage for white men. The Fifteenth Amendment, adopted in 1870, prohibited denial of the vote on account of race, though in practice African-Americans were denied that right in southern states for much of the twentieth century. Women gained a constitutional right to vote with the Nineteenth Amendment in 1920.

The short list of qualifications for serving in the U.S. House was also a step toward a more inclusive democracy. Article I, Section 2 imposed just three qualifications for members of the House. Members must: (1) be at least twenty-five years old, (2) have been a citizen for seven years, and (3) be an inhabitant of the state from which he is selected.  That was less stringent than those applicable to state legislators in most states, all but one of which required property ownership. The Supreme Court later held that neither Congress nor the states may add to Article I, Section 2’s list of qualifications. Powell v. McCormack (1969); U.S. Term Limits, Inc. v. Thorton (1995).   

To ensure that House members were accountable to the people, Article I, Section 2 provided for relatively frequent elections, to take place every two years. This contrasted with the terms of Senators under Article I, Section 3, which take place every six years.  

The constitutional requirement that House members be elected “by the People of the several States” eventually became the basis for the U.S. Supreme Court to hold that congressional districts must be as equal in population as possible (“one person, one vote”). Wesberry v. Sanders (1964). The “one person, one vote” rule applies with special rigor to U.S. House elections. Later cases establish that congressional districts must be closer to mathematical equality than state legislative districts, which are subject to the one person, one vote requirement under the Equal Protection Clause of the Fourteenth Amendment. While state legislative districts are generally presumed to be constitutional if their total deviation from population equality is less than ten percent, the Court has rejected even the tiniest departures from population equality in drawing U.S. House districts. Congressional redistricting plans with a deviation of less than one percent have been deemed unconstitutional under Article I, Section 2. See, e.g., Karcher v. Daggett (1983). 

To ensure that states were represented in proportion to their population, Article I, Section 2 required an “actual Enumeration” of people every ten years—what we today know as the U.S. Census. It also provided that each state shall have at least one U.S. House member. 

Article I, Section 2 also included one of the most infamous provisions of the U.S. Constitution, providing that a state’s direct taxation and representation in the U.S. House would be determined according to the “whole number of free Persons, . . . and, . . . three fifths of all other Persons.” Everyone understood that the “other Persons” were slaves. Yet the import of this Clause is sometimes misunderstood. 

At the Convention, slaveholding states wanted to count slaves for apportionment purposes, which would have increased the number of representatives to which the southern states were entitled. Because slaves were not allowed to vote, this would have given eligible voters in southern states relatively more power than those in northern states, making abolition less likely. It would also have given southern states a greater voice in selecting the President, because a state’s representation in Congress determines its representation in the Electoral College under Article II, Section 1. At the same time, the southern states did not want to count slaves at all for purposes of determining the direct taxes that the federal government could lay on the states, because that would increase their tax burden. The decision to count sixty percent of the slave population actually reduced the power of the southern states, compared to what it would have been if the entire slave population had been counted. The Three-Fifths Clause was eventually repealed by the Fourteenth Amendment, under which states are represented in Congress in proportion to their population and reduced to the extent that the right to vote is denied to male citizens 21 and older, except for participation in rebellion or other crime.   

Finally, Article I, Section 2 gives the U.S. House “the sole Power of Impeachment,” including impeachments of the President. Even the highest official in the land is accountable to the people, subject to removal from office for “high Crimes and Misdemeanors” under Article II, Section 4.  The House has exercised its power to impeach the President twice, with respect to President Andrew Johnson in 1868 and President Bill Clinton in 1998. On both occasions, the President was subsequently acquitted by the U.S. Senate, which has the sole power to try impeachments under Article I, Section 3. 

Bradley A. Smith Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School

Daniel P. Tokaji Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law, The Ohio State University, Michael E. Moritz College of Law

Though the substance of Article I, Section 2 was among the most controversial subjects at the Constitutional Convention, for many years thereafter it was among the least controversial parts of the Constitution. In the twentieth century, however, the problem of gross malapportionment of congressional districts (large population disparities between congressional districts) drew increasing public attention and calls for a judicial solution. Nevertheless, for many years, the Supreme Court held that the drawing of congressional districts was a “political question” for which there was no judicial remedy. See e.g., Colegrove v. Green (1946).  

The Supreme Court changed tack in the landmark 1962 decision in Baker v. Carr, holding that questions of legislative reapportionment were justiciable, and in Wesberry v. Sanders (1964) the Court held that “one person, one vote,” was a constitutionally required standard for apportionment. The Court, quoting James Wilson, defined this as “when a given number of citizens, in one part of the state, choose as many representatives, as are chosen by the same number of citizens, in any other part of the state.” Wesberry held that congressional districts should be equal in size “as nearly as is practicable” to “mathematical precision.”

The concept of “one person, one vote” was resoundingly, and appropriately, embraced by the American public in the wake of Wesberry and other decisions. However, while the concept is simple, it raises a number of questions that have yet to be resolved. For example, in Wesberry and later decisions the Supreme Court uses the terms “voters,” “citizens,” and “population” almost interchangeably. But two districts that have equal population will rarely have equal numbers of “voters,” since many people—notably children, non-citizen immigrants, and in many states, convicted felons—will not be eligible to vote.

Although the Court has usually spoken in terms of equally weighted “votes,” in fact districting since Wesberry has been based on equal population. Thus, “votes” are not equally weighted. For example, after the 2010 census, Texas’s 1st State Senate District had approximately 574,000 eligible voters, while the 27th District had approximately 372,000 eligible voters, even though the districts met the Wesberry standard of near perfect population equality. In Evenwel v. Abbott (2016), plaintiffs sought an order requiring the state to use voting population, rather than total population, for redistricting purposes. The Supreme Court held that the Texas districting plan, relying on equal population, was constitutional.

While the Court’s decision in Evenwel can be readily justified by history and tradition, it does suggest that the Court’s longstanding rhetoric of equal voting power may be misguided. An individual’s vote in Texas’s 1st District clearly is worth less than a vote in a 27th District, in that it has less impact on the outcome of a race.

In Evenwel, the plaintiffs argued that voting population was the required standard; the United States argued that total population was required; and Texas asked the Court to rule that either was permissible, and perhaps others too, such as equal numbers of registered voters. The Court limited its holding to specifying that equal population was a permissible standard for drawing districts. With legislatures demonstrating increased interest in redistricting alternatives, it seems only a matter of time until a state apportions based on the number of eligible voters or some other criteria beyond simple population, and that apportionment is challenged on the basis that total population is the only acceptable measure for apportioning seats. The purpose of the Baker v. Carr line of cases was to prevent gross malapportionment of the type occurring in the mid-twentieth century. Any of the standards given above would serve that function. Given the traditional role reserved in the Constitution for state legislatures to make redistricting decisions, allowing some state flexibility in choosing the exact standard may be appropriate.

The other area of some recent controversy is a quite unrelated one, but one brought to the fore with the impeachment of President Bill Clinton in 1998. Article I, Section 2 gives the House of Representatives the sole power of impeachment, but Article II, Section 4 specifies the criteria for impeachment: “Treason, Bribery, or other high Crimes and Misdemeanors.” During the debate over the impeachment, there was much commentary as to what constituted “high Crimes and Misdemeanors,” and whether this restricted the ability of the House to act.

As a practical matter, it is fair to say that when the House acts to impeach, it decides what the standard is for “High Crimes and Misdemeanors.” The Senate, which has the sole power to try impeachments under Article I, Section 3, then applies its own interpretation of the phrase to the evidence at hand. This is an important reminder, perhaps, that interpretation of the Constitution is not left to the judiciary alone. Each branch has an obligation to interpret the Constitution to the best of its ability, and to act in a manner faithful to that interpretation.

Bradley A. Smith Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School

How should the Constitution apply to a country that is very different from the one in which the Framers lived?  It is among the most vexing and persistent questions in American constitutional law, as ongoing controversies over Article I, Section 2 exemplify.

Back in 1787, the United States was much smaller and predominantly agrarian. The norm was that only white, male landowners could vote in state legislative elections—and therefore in U.S. House elections under Article I, Section 2. After the Civil War, African Americans were finally recognized as equal citizens through the enactment of the Fourteenth and Fifteenth Amendments, yet their civil and political rights were brutally suppressed for almost another century. Women too were denied equal citizenship for most of our history, only winning the right to vote when the Nineteenth Amendment was added to the Constitution in 1920. 

Expansion of the franchise is not the only respect in which our democracy has changed since the original Constitution. There has also been a major shift in responsibility over the enforcement of civil and political rights, away from the states and toward the federal government. The Fourteenth, Fifteenth, and Nineteenth Amendments all gave Congress authority to enforce the new rights they conferred. Congress has exercised its authority on numerous occasions, none more important than the Voting Rights Act of 1965, which made the right to vote a reality for southern blacks who had long been excluded from democratic politics.  

The federal courts have played a critical role in fostering a more inclusive democracy as well. In the 1960s, the Supreme Court articulated the “one person, one vote” principle in cases like Wesberry v. Sanders (1964) and Reynolds v. Sims (1964). It also struck down the poll tax in Harper v. Virginia Board of Elections (1966), based on the principle that the right to vote should not depend on one’s wealth or poverty. Other barriers to equal participation and representation were invalidated under the Voting Rights Act. We now take it for granted that race, sex, and economic means are not proper bases for denying or diminishing the vote. 

With the renewed focus on voting rights in this century, new questions regarding the meaning and import of Article I, Section 2 have arisen. Two recent developments illuminate the challenge of applying the Constitution to a world that is very different from the one in which the Framers lived. Both concern the relationship between Article I, Section 2 and another provision of the Constitution. Both arise from the rapidly increasing Latino population, particularly in the U.S. southwest. And both raise questions that the Supreme Court has yet to resolve conclusively.

The first concerns state restrictions on who may register to vote, which many states have adopted over the past decade. One such state is Arizona, a state with a growing Latino population that adopted a law mandating documentary proof of citizenship to register. This state law conflicts with the National Voter Registration Act (NVRA), under which states must “accept and use” a federal registration form that does not require documentation of citizenship. Arizona argued that this federal requirement was impermissible under Article I, Section 2, because it allows states to determine the qualifications for voting in congressional elections.

The Supreme Court rightly rejected this argument in Arizona v. Inter Tribal Council of Arizona (2013).  Justice Scalia’s opinion for the majority surveyed the history of Article I, agreeing that it allows states to set voting qualifications, but holding that Congress has broad power to regulate the manner of conducting congressional elections. Through the NVRA, Congress properly exercised this authority. Although it would raise constitutional doubts for Congress to prevent states from enforcing their voting qualifications, the NVRA imposed no such impediment. 

While correctly decided, Arizona v. Inter Tribal Council is surely not the last word on the uneasy relationship between a state’s power to set qualifications and Congress’s power to regulate congressional election procedures. Arizona and other states have challenged the federal government’s refusal to approve new proof-of-citizenship requirements on the federal registration form. New questions could arise if Congress were to adopt new rules regulating congressional elections, such as a uniform voter identification requirement preempting more stringent state laws. 

The other recent controversy implicating Article I, Section 2 concerns the drawing of state legislative districts. For more than a half-century, the “one person, one vote” rule has required that districts be drawn on an equal population basis. Article I, Section 2 is the textual source of this requirement for congressional elections, while the Equal Protection Clause is its textual source for state legislative elections. Disagreement persists over exactly who should count in assessing whether the requisite population equality exists.

The question of who counts for state legislative redistricting was raised but not fully resolved in Evenwel v. Abbott (2016).  Like every other state, Texas uses total population—including children, non-citizens, and others who are ineligible to vote—to draw its districts. The plaintiffs in Evenwel argued that the Fourteenth Amendment required Texas to equalize eligible voters among districts. The case thus raised the question whether “one person, one vote” is a principle of representational equality or voting equality. 

The Supreme Court unanimously rejected the challenge to Texas’s districting argument, holding that the state was entitled to equalize total population and not eligible voters. The result was not surprising, given the uniform practice of the states. Justice Ginsburg’s opinion for the Court relied on the language and history of Article I, Section 2, which requires that representatives be apportioned among states “according to their respective Numbers.” That includes people who are not eligible to vote. Section 2 of the Fourteenth Amendment retained this requirement, while abolishing the three-fifths clause. “It cannot be,” Justice Ginsburg reasoned, “that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on the same basis.” 

The question Evenwel leaves open is whether states are required to equalize total population when drawing state legislative districts—or, alternatively, whether they may leave out non-voters like children, non-citizens, and prisoners. Evenwel holds that states may equalize total population, but does not decide whether they must do so. The issue could arise after the 2020 Census, if Texas or some other state decides to use eligible voters instead of total population to draw its districts. Such a decision would have the effect of weakening the voting strength of Latino communities, which tend to include more people (such as children and non-citizens) who may not vote. Evenwel suggests that “the theory of the Constitution” is that everyone should count but, again, does not definitively resolve this question.

The Arizona and Texas cases reveal the continuing importance of Article I, Section 2 to recent and ongoing controversies over the right to vote. Courts interpreting this provision should be guided by a clear-eyed recognition of how our law and society have developed since the Founding. That includes our greater inclusivity of our democracy, as well as the centrality of federal law in enforcing the right to vote. This isn’t to say that the original meaning and the intent of the Constitution are irrelevant. To the contrary, they are critical touchstones, as the opinions in Arizona v. Inter Tribal Council and Evenwel demonstrate. But to paraphrase Justice Felix Frankfurter, the gloss that our constitutional history has written upon words of the Constitution should also inform their interpretation. That gloss includes the expansion of the right to vote and Congress’s central role in protecting it. 

Daniel P. Tokaji Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law, The Ohio State University, Michael E. Moritz College of Law

The Suspension Clause protects liberty by protecting the privilege of the writ of habeas corpus. It provides that the federal government may not suspend this privilege except in extraordinary circumstances: when a rebellion or invasion occurs and the public safety requires it. 

Appreciating the significance of this restraint first requires understanding the writ of habeas corpus. This writ, which Americans imported into the Constitution from English common law, is a means by which a prisoner can test the legality of her detention. A person who believes she is being imprisoned illegally can file a petition asking a judge to issue a writ of habeas corpus. When a prisoner files a petition for a writ of habeas corpus, her custodian must explain why the restraint is lawful. If the explanation does not satisfy the court, it will order the custodian to release her. The writ is thus a crucial means by which a prisoner can obtain freedom.

Today, the writ of habeas corpus is primarily used by those serving prison sentences to challenge the legality of the process that resulted in their conviction. Historically, however, the writ was primarily used by those imprisoned without judicial process. Early Americans were keenly aware that monarchs of England had sometimes jailed people indefinitely without charging or trying them in court. Although the writ of habeas corpus existed, the king often ignored it. To protect against such abuse, Parliament enacted the Habeas Corpus Act of 1679 to ensure that the king released prisoners when the law did not justify confining them. This “Great Writ” guaranteed prisoners held on authority of the crown the right to invoke the protection of the judicial process. 

The founding generation valued the Great Writ because they had this history in mind. Yet those who framed and ratified the Constitution also believed that in times of crisis, the executive might need leeway to hold suspects without answering to a court. Parliament had suspended the writ during the seventeenth and eighteenth centuries when it concluded that the king needed expanded detention power to contain threats. Similarly, several states had equipped their governors with emergency power by suspending the writ during the Revolutionary War. Pre-ratification practice thus embraced both the importance of the writ and the need for a safety valve.

The Suspension Clause follows in this tradition. It protects the writ by imposing a general bar on its suspension. At the same time, it makes an exception for cases when an invasion or rebellion endangers the public safety. A suspension is temporary, but the power it confers is extraordinary. When a suspension is in effect, the president, typically acting through subordinates, can imprison people indefinitely without any judicial check.

The Clause does not specify which branch of government has the authority to suspend the privilege of the writ, but most agree that only Congress can do it. President Abraham Lincoln provoked controversy by suspending the privilege of his own accord during the Civil War, but Congress largely extinguished challenges to his authority by enacting a statute permitting suspension. On every other occasion, the executive has proceeded only after first securing congressional authorization. The writ of habeas corpus has been suspended four times since the Constitution was ratified: throughout the entire country during the Civil War; in eleven South Carolina counties overrun by the Ku Klux Klan during Reconstruction; in two provinces of the Philippines during a 1905 insurrection; and in Hawaii after the bombing of Pearl Harbor.

The most hotly debated questions concerning the Suspension Clause involve its effect in the absence of a formal suspension. 

A threshold question is whether the Clause simply restrains Congress’s ability to suspend whatever habeas jurisdiction is currently on the books, or whether the Clause grants an affirmative right to habeas review (or an adequate substitute for it). On the one hand, the Clause’s general bar on suspension assumes that some access to habeas relief will exist when the privilege of the writ has not been suspended. On the other hand, as Chief Justice Marshall noted in Ex Parte Bollman (1807) the Clause does not itself expressly guarantee that access. The Court seems to have resolved this dispute in Boumediene v. Bush (2008), where it held that the Clause does not simply restrain Congress’s ability to suspend existing habeas statutes but affirmatively guarantees prisoners some forum in which they can challenge the legality of their detention. Also in Boumediene, the Court decided—to much controversy—that habeas jurisdiction extends to prisoners detained outside the United States at Guantanamo Bay. 

In recent years, the writ is most commonly sought by convicted defendants in state prison. Each year, over 18,000 petitions for the writ of habeas corpus are filed in federal court by state prisoners against their prison wardens. But a very slim fraction of those petitions are actually successful, in part due to the limits Congress placed on federal courts reviewing habeas petitions when it enacted the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA significantly limited federal courts’ power to grant habeas relief for state prisoners.

The questions about the scope of and limits on the Great Writ are far from settled. Both the Supreme Court’s Guantanamo decisions and AEDPA remain controversial, as we grapple with the Founders’ vision of the writ and the proper balance to strike between liberty and security.

Amy Barrett Diane and M.O. Miller, II Research Chair in Law, Professor of Law, The Law School, University of Notre Dame

Neal K. Katyal Paul and Patricia Saunders Professor of National Security Law, Georgetown University Law Center

American citizens held by the United States have the right to seek the writ of habeas corpus whether they are held at home or abroad. Noncitizens held within the United States also have a right to seek the writ. Boumediene v. Bush (2008) extends the right to a third category of detainees: noncitizens held outside the territorial jurisdiction of the United States. The case is controversial because its holding, which has significant implications for national security, is contrary to precedent and unsupported by the Constitution’s text and history. 

Boumediene was not the first case in which the Supreme Court confronted the argument that a noncitizen enemy held abroad is entitled to seek a writ of habeas corpus in an American court. In Johnson v. Eisentrager (1950), a case decided in the wake of World War II, twenty-one German citizens held in an American military facility in Germany petitioned for the writ, maintaining that their detentions violated both the United States Constitution and international law. The Supreme Court held that American courts lacked authority to entertain these petitions. It observed that the constitutional text did not expressly confer such a right, and that no court in history had ever issued a writ of habeas corpus on behalf of a noncitizen held captive outside the territorial jurisdiction of the United States.   

Boumediene abandoned Eisentrager’s bright-line test based on sovereignty and citizenship in favor of a multi-factor test that extends habeas jurisdiction to locations where courts think it reasonable to do so. In Boumediene, the Court asserted that the U.S. Constitution grants noncitizens imprisoned in Guantanamo Bay, which is in the sovereign territory of Cuba, the right to seek habeas corpus in federal court. Its conclusion rested on three considerations: (1) the fact that the detainees disputed their status as enemy combatants; (2) the Court’s determination that the United States has functional control over Guantanamo Bay; and (3) its judgment that forcing the military to participate in habeas proceedings would not compromise national security. It then held that the Military Commissions Act, which permitted petitioners to challenge the legality of their detention in military tribunals but not federal habeas proceedings, was unconstitutional.

Reasonable people disagree about the wisdom of empowering the judiciary to second-guess the military’s decision, often made on the battlefield, to classify a prisoner as an enemy combatant. Boumediene, however, was not about choosing sides in that policy debate; it was about determining what the Suspension Clause required. The Court struggled to justify its new rule as one imposed by the Constitution. Because the text of the Suspension Clause does not specify the scope of the protected habeas right, the Court has always defined it with reference to history. And the Boumediene Court conceded that the historical record fails to establish that courts had ever entertained habeas petitions filed by noncitizens held in other countries. The dissenters, who maintained that the Suspension Clause did not override Congress’s choice to deny federal jurisdiction, had the better of the argument.  

Whether Boumediene is right or wrong, it dealt with the core office of the writ: testing the legality of executive detention. The application of the Suspension Clause in the post-conviction context is much less certain. Because habeas was not a tool for obtaining post-conviction relief at the time the Constitution was ratified, the founding generation could not have understood the Clause to protect this use of the writ. Congress made post-conviction relief for state prisoners available in the late nineteenth century. Even if legislative expansions of the writ ratchet up the protection offered by the Clause—a proposition that the Court has never squarely embraced—Congress surely has more flexibility to shape jurisdiction here than it does in the executive detention context.

Amy Barrett Diane and M.O. Miller, II Research Chair in Law, Professor of Law, The Law School, University of Notre Dame

A View on Congress’s Power to Limit the Writ of Habeas Corpus

Over the past two decades, Congress has made several efforts to limit the availability of the writ of habeas corpus. In 1996, it passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which prevented prisoners from filing multiple habeas petitions and mandated a deferential standard of review of state court decisions. And in 2006, Congress stripped from the federal courts the power to grant habeas relief to enemy combatants imprisoned outside the United States. These laws present difficult and controversial constitutional questions. Does the writ extend outside the territory of the United States? How much deference should the courts give Congress and the executive in determining the scope of habeas relief, especially in national security cases? I argue that Congress has the authority to regulate the availability of habeas corpus relief through laws like AEDPA so long as they afford prisoners with plausible innocence claims an opportunity for relief, but that Congress does not have the authority to withhold habeas relief from combatants detained at prisons like Guantanamo Bay that are under complete U.S. government control.

Anti-Terrorism and Effective Death Penalty Act (AEDPA)

AEDPA had two principal effects on the availability of habeas relief. First, it imposed procedural limits on habeas petitions, including a one-year statute of limitations and a bar on successive petitions. See 28 U.S.C. § 2244.  Second, it required federal courts to employ a deferential standard of review when reviewing state court decisions. See 28 U.S.C. § 2254.

I believe that AEDPA, at least as drafted by Congress, appropriately sets the contours for habeas relief. My perspective is informed by the influential views of the great Judge Henry Friendly. To Judge Friendly, the core of habeas corpus relief concerns prisoners with colorable claims of innocence. Accordingly, Judge Friendly believed that Congress could enact procedural and substantive limits on the availability of habeas relief. AEDPA codifies such limits. Moreover, AEDPA largely preserves what Judge Friendly believed to be the essential function of habeas: ensuring that the innocent have an opportunity to vindicate their claims in a federal court. See Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970).

In interpreting AEDPA, the Supreme Court has at times vindicated the innocence view and at times threatened it. In McQuiggin v. Perkins (2013), the Court correctly allowed an exception to AEDPA’s one-year statute of limitations for prisoners with a strong claim of innocence. In other cases such as Woods v. Etherton (2016), however, the Supreme Court has elevated the standard for habeas relief so as to make it nearly impossible for prisoners, even innocent ones, to obtain relief. So while I believe AEDPA as a general matter is consistent with the Constitution, I harbor concerns about the deferential standard of review of state court decisions mandated by the Supreme Court.

Congressional Limits on the Extraterritorial Scope of Habeas Corpus

In response to Supreme Court decisions holding that the great writ was available to certain enemy combatants detained during the War on Terror, Congress passed the Military Commissions Act (MCA) in 2006. The MCA stripped U.S. courts of the power to consider habeas petitions for enemy combatants held outside the United States. Two years later, the Court held the MCA unconstitutional as applied to combatants detained at Guantanamo Bay in Boumediene v. Bush (2008). In reaching this conclusion, the Court balanced three main factors: (1) the citizenship and status of the detainee; (2) the nature of the sites of apprehension and detention; and (3) the practical obstacles in resolving prisoner’s entitlement to the writ. With regard to Guantanamo, these factors leaned in favor of the availability of habeas relief. In particular, the Court noted that the U.S. government exercised complete and total control over the prison.

In 2010, the D.C. Circuit Court of Appeals reached the opposite conclusion with respect to enemy combatants held at the Bagram Air Base in Afghanistan in Al Maqaleh v. Gates. Applying the Court’s three-part test, it concluded that the combatants were not constitutionally entitled to file habeas petitions in U.S. courts. In reaching this conclusion, the court noted that the combatants were detained, quite literally, in a war zone, and this reality posed immense “practical obstacles” to allowing habeas proceedings in U.S. courts.

In my view, these decisions strike the right balance between preserving the writ as a check on government authority and safeguard of personal liberty while giving the executive branch space to operate in times of war. 

Neal K. Katyal Paul and Patricia Saunders Professor of National Security Law, Georgetown University Law Center

Article I, Section 6 contains several clauses of great significance. It begins by specifying that Senators and Representatives shall be paid out of the Treasury of the United States and not by the states they represent as had been the practice under the Articles of Confederation. This emphasizes the fact that Senators and Representatives are officers of the federal government and not of the state wherein they were elected.

Article I, Section 6 also says that Senators and Representatives shall not be questioned in court or by the President for any speech or debate they give or participate in on the floor of the Senate or the House. This assures ample freedom of debate in Congress.

Article I, Section 6 provides in addition that Senators and Representatives cannot be appointed to offices the salaries of which had been increased during the time of their service in Congress. This Ineligibility Clause is a simple ethics rule preventing Members of Congress from increasing the salary of an executive office and then soliciting the President to appoint them to that office so they can benefit from the salary increase they had voted for.

An interesting question raised by this Clause is whether a Senator or Representative who was serving in Congress when the salary of an executive office was raised may be appointed to that office if the salary of the office is subsequently reduced to its original level. This scenario has occurred several times in relatively recent history. The first time it came up, the question was whether President Richard Nixon could appoint Senator William Saxbe to be his Attorney General, even though Congress had raised that office’s salary while Saxbe was a Senator (after the salary was rolled back to its original level, Saxbe did in fact take office). The so-called “Saxbe fix” came up again in 1987, when President Ronald Reagan was considering whether he could appoint Senator Orrin Hatch to the Supreme Court even though the Justices’ salaries had been raised while Hatch was a Senator. In that instance, the Office of Legal Counsel at the Department of Justice issued an opinion declaring that the Saxbe fix would not render the appointment constitutional. More recently, however, the same office at the Justice Department reached the opposite conclusion, thus clearing the way for President Barack Obama to appoint Hillary Clinton to be the Secretary of State despite the fact that the Secretary’s salary had been increased during Clinton’s tenure in the Senate. See Justice Department Memorandums for the Attorneys General.

Finally, and most importantly, Article I, Section 6 provides that “no person holding any office under the United States, shall be a member of either House during his continuance in office.” This provision is of profound structural importance since it prevents the appointment of powerful Senators or Congressmen to the President’s Cabinet thus reinforcing the separation of legislative and executive power. Absent this Incompatibility Clause, it is quite likely that powerful Senators and Representatives would demand that they be appointed to the Cabinet, and the President would likely have to acquiesce. This would create a sort of parliamentary government in which the President was independent but all the great officers of state were Congressmen. Thanks to the Incompatibility Clause, the U.S. has a separation of powers and a separation of personnel. The same people cannot simultaneously exercise legislative and executive (or judicial) power. Members of Congress are barred from holding executive branch or judicial offices. For further discussion of this Clause, see Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 Cornell L. Rev. 1045-1157 (1994); Jay Wexler, The Odd Clauses: Understanding the Constitution Through Ten of its Most Curious Provisions, ch.1 (2012).

Occasionally, the question arises—what counts as an “office under the United States”? It has been suggested by one scholar, for instance, that the office of President is not such an office because the President presides over the executive branch rather than being an officer within it. If this scholar were right (and neither of us think that he is), then it would follow that the Speaker of the House of Representatives and President Pro Tempore of the Senate could serve as President without violating the Incompatibility Clause. And what about members of the National Guard or military reserve officers? Can a member of Congress simultaneously serve in the reserves? In the 1970s, a federal court faced with this question held that such an arrangement violated the Incompatibility Clause, but the Supreme Court subsequently dismissed the case on grounds that the plaintiffs lacked standing to raise the question. The issue, therefore, remains unresolved.  See Schlesinger v. Reservists to Stop the War (1974).

The Framers added the Incompatibility Clause to the Constitution as a constitutional ethics rule, and no one at the Founding foresaw the profound structural effects it would have on American government. Eighteenth century British Monarchs had bribed their way to control over the House of Commons by offering Members of the House lucrative executive offices to secure the Members’ votes on issues important to the King. The Framers of the U.S. Constitution were repulsed by this behavior, and so they added the Incompatibility Clause to the Constitution as an ethics rule to prevent such corruption in the United States. An unintended consequence of the Framers’ incompatibility ethics rule was that it empowered the President greatly by making it unconstitutional for powerful Members of Congress to demand Cabinet appointments.

There is no Incompatibility Clause for executive and judicial officers, and there is thus a long history of judges holding executive branch as well as judicial offices. Chief Justice John Jay thus negotiated a peace treaty with Great Britain as an ambassador; Chief Justice John Marshall served simultaneously as Secretary of State and as Chief Justice in February 1801; Justice Robert Jackson was the Chief Allied Prosecutor of the Nazis at the Nuremberg Trials; and Chief Justice Earl Warren served as the head of an executive branch Commission—the Warren Commission—which investigated who had been involved in the assassination of President John F. Kennedy. The American Bar Association frowns on such joint judicial and executive branch office-holding for obvious ethical reasons, and no recent Justice has held any executive branch office. 

There is also no federal constitutional Incompatibility Clause forbidding the joint holding of federal and of state offices. Many state constitutions, however, do forbid this. Most modern constitutions have strict Incompatibility Clauses based on a sensible One Person, One Office principle.

The Incompatibility Clause of Article I, Section 6 may be under inclusive, but it is perhaps the foremost reason why the U.S. never developed a parliamentary system of government. Because Members of Congress are forbidden from holding executive offices, they have instead set up a very powerful congressional committee system, which shadows each presidential Cabinet department. The Senate and House Foreign Affairs Committees thus shadow the State Department just as the Senate and House Judiciary Committees shadow the Justice Department. The congressional committee system is the stunted growth of a parliamentary government in the United States, which cannot take over the Executive Branch because the Incompatibility Clause prevents Congressional Committee Chairmen from demanding Cabinet appointments. Accordingly, the Incompatibility Clause guarantees an independent executive branch headed up by the President, and it is one of the most important, even if unnoticed, clauses in the Constitution. 

Steven G. Calabresi Clayton J. and Henry R. Barber Professor of Law, Northwestern Pritzker School of Law

Jay D. Wexler Professor of Law, Boston University School of Law

After returning from France in 1789, Thomas Jefferson reputedly asked George Washington, while they were having breakfast one morning, why Washington had agreed to the creation of the United States Senate in the Constitution.  Noting the saucer on which Jefferson’s hot coffee, or tea, rested, Washington explained, “we pour our legislation into the senatorial saucer to cool it.” No one knows if this story is really true, but it nonetheless nicely captures what the Framers hoped to achieve in establishing the United States Senate.

Most importantly, as reflected in Article I, Section 3, the Framers designed the Senate, like they had other fixtures within the Constitution, such as the Electoral College and the judiciary, to be counter-majoritarian. The Framers’ distrust of tyrannies extended to popular majorities, and the Senate was originally constructed and empowered to function in ways that frustrated direct democracy and kept the House of Representatives in check. Whereas the Constitution provided that members of the House of Representatives would each be elected by popular majorities in their respective districts, the Constitution originally treated Senators quite differently.  In the original design, Senators were chosen by their respective State legislatures; indeed, as a result, they were subject to instruction and recall if they did not do what their legislatures told them to do.

Moreover, the Constitution provides, in one of the most important compromises forged at the Constitutional Convention, that each State has two Senators in the Senate, regardless of the size of its population. This feature ensured each of the small States, such as Delaware, would wield as many votes as each of the larger ones, such as New York. The Constitution thus gave small States the means to protect themselves from having their interests and sovereignty overrun by the large States. 

The idea behind the Constitution’s ensuring Senators were not subject to direct pressure or retaliation from popular majorities is facilitated further through the length of the terms and the requisite qualifications for Senators, which are also set forth in Article I, Section 3. Whereas the Constitution provided the minimum age for membership in the House of Representatives to be 25 and for every seat in the House to be up for re-election every two years, it provided for the minimum age for serving in the Senate to be 30 and for Senators’ terms to last for six years. The relatively higher minimal age requirements for Senators and longer lengths of Senate terms were designed to increase the likelihood that Senators would be better educated and more disposed than their House counterparts to take the long view on important issues. 

The different powers of the House and Senate further reflect the Framers’ hopes for the Senate’s disposition toward the implementation or protection of classical republican values, such as ennoblement through public service. So, the Constitution did not vest the House of Representatives with the power to complete any legislative action—apart from its powers provided elsewhere within Article I—to issue rules for its internal governance, to judge its members’ elections and returns and qualifications, and to expel members for disorderly conduct, as provided elsewhere. Even with its “sole” power to impeach, the House may only initiate a legislative action but must depend on the Senate to complete the job, whether it entails enacting a law or convicting and removing a high-ranking official, such as the President, for serious misconduct in office.

In Article I, Section 3, the Constitution, quite deliberately, vests the Senate with the authority to undertake four specific actions, none with the formal input or approval of the House, including providing advice and consent to presidential nominations, ratifying treaties, conviction and removal of high-ranking officials for misconduct, and approving constitutional amendments. The requirements that three of these may be done only pursuant to super-majority votes—ratifying treaties, amending the Constitution, and convicting and removing high-ranking officials for misconduct—are designed, as James Madison explained in The Federalist No. 58 as a “shield to some particular interests, and another obstacle generally to hasty and partial measures.”

The ratification of the Seventeenth Amendment in 1913, however, transformed the Senate. By making Senators subject to popular election in their respective States, it effectively democratized the Senate and, in doing so, abandoned one of the critical differences between the House and the Senate—namely, Senators’ dependence on and allegiance directly to their States. This transformation weakened one of the strongest connections between Senators and their States as sovereign entities; it made it easier for Senators to pay less attention to local or state leaders’ concerns about federalism and more prone to follow the popular will, even if it meant sacrificing State sovereignty. It is no coincidence, many scholars believe, that it was after the ratification of this transformative Amendment that the Senate joined the House in expanding to unprecedented degrees the size and scope of the federal government, all at the expense of State sovereignty. With this Amendment firmly in place, these scholars argue further, there is no turning back of the transformation it wrought. 

Steven G. Calabresi Clayton J. and Henry R. Barber Professor of Law, Northwestern Pritzker School of Law

Michael J. Gerhardt Samuel Ashe Distinguished Professor in Constitutional Law & Director, Program in Law and Government, University of North Carolina School of Law

The United States Senate is the lynchpin of the American constitutional system, and it is the most powerful upper chamber of any bicameral legislature in any country in the world. The Constitution confers on the U.S. Senate legislative, executive, and judicial powers. Article I, Section 7 makes the Senate fully co-equal to the House of Representatives when it comes to making laws, which is the essence of the legislative power. No bill can become a law without the Senate’s consent, and presidential vetoes of laws can be overridden only with the consent of two-thirds of the Senate. 

Article II, Section 2, however, also confers on the Senate a share in the executive powers of appointment and treaty-making. The Senate must consent before any high executive or judicial branch officer can be appointed to office. Similarly, no treaty can be made by the President without the approval of two-thirds of the Senate.

Finally, Article I, Section 3 also gives the Senate the exclusive judicial power to try all cases of impeachment of the President, the Vice President, or any other civil officer of the United States. By a two-thirds vote, the Senate can remove any of these officers after conducting a trial. 

The Senate combines in itself the legislative, the executive, and the judicial powers, and thus drew the censure of those Anti-Federalists who agreed with Montesquieu that any such a combination of powers constitutes the very definition of a tyranny. James Madison devoted four Federalist Papers: The Federalist Nos. 47 through 51, to refuting the Anti-Federalist argument that the Senate was a dangerous institution. Madison argued that the principle of checks and balances is even more important than the separation of powers to the preservation of constitutional government.  “Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place.”

Time has proven Madison right. Whereas all other separation of powers presidential democracies in Latin America, Russia, Indonesia, South Korea, and the Philippines have degenerated into presidential dictatorships, the U.S. system of checks and balances has thwarted presidential and Supreme Court abuses of power many times in our history. The Senate is quite simply the single most powerful institution created by the Constitution of the United States.

The Senate, and the federal courts—which the Senate plays a role in picking—are decidedly the most oligarchic entities created by the Constitution.  Popular election of the President through the mechanism of the Electoral College makes it possible for a demagogue or a would-be tyrant to be elected to the presidency. Similarly, the House of Representatives, the members of which serve only two-year terms, can easily be swayed by the passions of the moment. The Senate and the federal courts stand as a firm bulkhead against populist Presidents and transient majorities in the House of Representatives. Senators serve a lengthy six-year term and federal judges have life tenure whereas the President serves only a four-year term and the members of the House of Representatives only a two-year term. Only one-third of the members of the Senate come up for re-election every two years while changing a majority on the Supreme Court is a 12 to 16 year project as to which the Senate must consistently concur.  

Why did the Framers of the U.S. Constitution who were committed to creating a republican form of government choose to give the Senate so much power—more power even than is possessed by the House of Representatives, which is the people’s house? The answer can be found in the Framers’ admiration for the writings of Aristotle, Polybius, Cicero, St. Thomas Aquinas, and Machiavelli. All of these political philosophers argued in favor of Mixed Regimes over monarchies, aristocracies, and democracies as being the most conducive to human flourishing, safety, and happiness. See Steven G. Calabresi, Mark E. Berghausen, & Skylar Albertson, The Rise and Fall of the Separation of Powers, 106 Northwestern Univ. L. Rev. 527 (2012).

The advantage of a monarchy was that it offered decisive leadership in foreign policy and in times of war as well as offering a national check on avaricious domestic factions. The disadvantage of a monarchy, as Aristotle and Polybius explained, was that it usually degenerated into tyranny—the unjust rule for the selfish benefit of one person.

The advantage of an aristocracy according to Aristotle and Polybius was that it offered rule by the wisest, most virtuous, and the best people in the country. The disadvantage of any aristocracy was that it usually degenerated into its corrupt form, which is oligarchy—the unjust rule of a few people for their own personal benefit.

The advantage of a democracy according to Aristotle and Polybius was that it offered common sense government and a high degree of personal liberty. The disadvantage of a democracy was that it usually degenerated into mob rule—the unjust oppression by 51 percent of the public of the other 49 percent.

The solution to these problems according to Aristotle, Polybius, Cicero, St. Thomas Aquinas, and Machiavelli was to create a Mixed Regime of the One, the Few, and the Many—thus obtaining the benefits of each regime type while minimizing the chance of regime degeneration. The Framers’ Constitution thus creates a Mixed Regime—of the One President, the Few in the Senate and on the Supreme Court, and the Many in the House of Representatives, which is as powerful as a monarchy in foreign affairs, as wise as an aristocracy in preserving fundamental rights, and as free and as full of common sense as a democracy in exercising its powers. Since 1913, it can truly be said that the United States has had a democratized Mixed Regime in which power is divided and balanced among the One, the Few, and the Many with the Many ultimately electing both the One president and the Few in the Senate who in turn select the Few who serve in the federal courts.

What then is left of the separation of powers into legislative, executive, and judicial power?  The answer is that the Few and the Many in the Senate and in the House of Representatives can exercise only the legislative power except where the Constitution specifically provides otherwise—as it does in giving the President a qualified veto power. The separation of powers, the Madisonian system of checks and balances, and the division of our republic into a popularly selected Mixed Regime of the One, the Few, and the Many are all reflections of the American dedication to Lord Acton’s dictum that “[p]ower tends to corrupt and absolute power corrupts absolutely.”

The Senate is not only a key balance wheel in the function of the national legislature, executive, and judiciary, but it is also a key balance wheel in the functioning of the American system of federalism. Because each state has two and only two Senators no matter how big is the population disparity between them, the Senate plays a huge role in protecting the less populous states from the most populous ones and in the policing of federalism boundary lines. This is even more true when one factors in, as one must, the Senate’s central role in confirming Supreme Court justices and other federal judges. 

James Madison, in The Federalist No. 62, defends bicameralism and the Framers’ decision to create the Senate by arguing that the long term of Senators will ensure consistency and continuity in government policies, which is desirable because it reduces the risk factor in investments, and it produces a stable and reliable foreign policy. The Senate, however, does much more than producing stability and consistency in legislation. It also acts as the most powerful check and balance on the President and the federal courts. 

Barbara Sinclair sums up succinctly the key features of the U.S. Senate in Senates: Bicameralism in the Contemporary World 3 (Samuel C. Patterson & Anthony Mughan eds., 1999). Sinclair says that “[t]hree characteristics make the U.S. Senate unusual among upper chambers: it shares legislative power equally with the House of Representatives; it operates under a set of rules that vests enormous power in each senator; and when majorities rule in the Senate it is only by leave of minorities.” The operating rule of the Senate is that debate on legislation can continue indefinitely, unless 60 Senators vote to end by voting for cloture. The Senate is thus the only legislative body in the world that we are aware of that does not operate by majority rule.

These features of the Senate make it even more deliberative, aristocratic, and oligarchic than one would expect merely from reading the text of the U.S. Constitution. It is all of these features of the Senate taken together that render it the lynchpin of the American constitutional system.

Steven G. Calabresi Clayton J. and Henry R. Barber Professor of Law, Northwestern Pritzker School of Law

The Senate is widely viewed with more disdain and less respect today than it has at any other time in American history. It is common to look back upon the nineteenth century as a golden era in which the Senate was widely viewed as the home of great orators and great statesmen— such as Henry Clay of Kentucky—and monumental debates—such as the great debates over protectionist tariffs in 1830 and the Compromise of 1850, which featured memorable speeches by Clay, Senator Daniel Webster of New Hampshire, and Senator John Calhoun of South Carolina. Today, few if any people think of any sitting Senators as great orators or great statesmen. Today, almost no one expects more from the Senate than the House, which even the Framers had viewed with disdain.

The Senate’s demise in stature is likely attributable to many factors, but the one that is cited the most is the Seventeenth Amendment. Ratified in 1913, the Seventeenth Amendment replaced the Constitution’s original scheme of having state legislatures choose Senators with the establishment of popular election of Senators. Many scholars have argued that this Amendment effectively broke the Senate’s connection to States’ interests and that Senators have ever since increasingly taken State sovereignty or federal overreaching less seriously than they presumably did before the Amendment’s ratification. 

The Supreme Court has not embraced that view, at least fully. It has cited, more than once, the changes wrought by the Seventeenth Amendment—along with other developments such as the increase in the size (and authority) of congressional staffs, the growing influence of lobbyists and special interests, and the need to be perpetually raising money to stay in office—as necessitating judicial review in order to protect against flaws within the federal legislative process that could lead to congressional overreaching at the expense of State sovereignty. In another line of cases arising under the Eleventh Amendment, the Court has consistently struck down federal laws forcing States to relinquish their immunity from paying damages in federal court.  The Court has also overturned federal laws commandeering any part of state government from doing something contrary to its will. Even if the Seventeenth Amendment weakened the connections between the Senate and State interests, the Court still seems to care a great deal about the latter.

Moreover, there have been great debates since the Seventeenth Amendment’s ratification and great moments, such as the enactment of the landmark 1964 Civil Rights Act, the 1965 Voting Rights Act, and the Clean Air and Water Acts, albeit all at the expense of State sovereignty. Whatever the changes wrought by the Seventeenth Amendment might be, other factors apparently have contributed more to the diminution of the Senate’s stature.

One theory is the rise of corruption. As David Brooks, the New York Times columnist, explained, “There is so much money flowing through Washington that the special interests get what they want and everyone else gets the shaft. Another theory has to do with insularity. The elites spend so much time within the Acela corridor that they don’t have a clue about what is going on.” Brooks might be right, but these explanations, too, have much in common with our past, as there were many Senators in the nineteenth century who were corrupt and who lived as elites. 

Brooks argues another, “deeper” problem with the Congress, including the Senate, is the fact that public servants now find themselves “enmeshed in a system that drains them of their sense of vocation.”  The problem, on his view, is that public servants have too often become professional politicians rather than people who are answering a calling—the calling of doing something for the common good. His argument extends to all public servants, not just Senators, but there is some reason to believe that today Senators rarely are more than—Senators. Daniel Webster, for example, was one of the greatest lawyers of the nineteenth century—he argued more than 100 cases in the Supreme Court while serving in the House of Representatives at different times as a representative from New Hampshire and Massachusetts, in the Senate, and as Secretary of State under three different presidents. One is hard pressed to find anyone in the Senate coming close to the standard set by Webster.

The idea that Senators might have fallen prey, along with House members and other public servants, to a system that drains or dilutes their passion for the common good is likely to resonate with many people, though it is unclear to what extent the Seventeenth Amendment is the cause. The length of service in the Senate has increased over the years, while the Senate’s productivity has hit new lows. This decline has coincided with increases in voting along party lines and, perhaps as a result of all these factors, the proliferation of procedural obstacles to getting things done. With increased demands for action, the Senate has responded with more obstacles. The number of veto gates has increased, so that it has become harder, not easier, for legislative business, including judicial and other nominations, to get to the Senate floor for final debate. 

For example, the filibuster grew increasingly effective over the twentieth century as a way for substantial minorities within the Senate to block floor votes on a wide variety of matters, including civil rights legislation. To be sure, the filibuster was a potent weapon throughout Senate history, famously blocking final Senate votes on major civil rights legislation for more than a century. What might have made the filibuster worse than ever before was the so-called two-track system, which then-Majority Leader Mike Mansfield implemented in 1975. It allowed the mere threat of a filibuster to sidetrack legislative business, including nominations. The way it worked was that, once nothing more than a threat was made, the matter being threatened was set aside, and other legislative business went forward.  That scheme undoubtedly provided incentives to filibuster, and judicial filibusters increased throughout the 1990s and the administration of George W. Bush and the first term of President Obama.

The decision by the Democratic Senate majority in 2013 to disallow filibusters of judicial and executive branch nominations has removed one obstacle to judicial confirmations, but Senators in the majority retained many other procedural mechanisms for obstructing nominations. The confirmation of lower court judges has reached an all-time low, not because of the filibuster and not because they lack merit, but rather because a majority in the Senate that is controlled by one party has decided, in an election year, to deny the President of the opposite party the opportunity to fill any more judgeships, including the Supreme Court.   

Yet that is not all. In order to keep the President from exercising his power to make recess appointments, the Senate began the practice, while George W. Bush was President, of holding pro forma sessions—incredibly brief sessions, rarely more than 30 seconds, allowing the Senate to call itself into a formal session every other day, even though most Senators are away or on break. Though the Supreme Court upheld the constitutionality of this practice in NLRB v. Noel Canning (2014), the practice is controversial. To some, this kind of obstruction is welcome because it preserves the constitutional status quo, at least until the next election. To many others, pro forma sessions seem like nothing more than a parliamentary gimmick, which enables the Senate to block a President’s recess appointments for no better reason than that the Senate has the power to do so. 

While the Senate has historically been a place where even important legislative business often got slowed down if not sometimes blocked permanently, it now rarely happens in a way that involves Senate debate or that the public can see. This is true even though there is unprecedented coverage of the Senate through C-SPAN and the Internet. The opportunity for great debates has shrunk, grandstanding has increased, and the motives of the obstructionists do not always seem noble. And the constant coverage of the Senate does not guarantee many people are watching the Senate closely. The 24-hour news cycle and the proliferation of Internet news sites have generally made it easier for people to reinforce their political and constitutional views. Even so, most people are probably unfamiliar with the shenanigans in the Senate or do not care, and most people do not, as far as we can tell, tune into Senate debates or follow them closely.

Whatever one thinks of the Senate, it is almost certainly here to stay—and to stay in its present form. This includes the rather archaic configuration in which every State has two Senators, regardless of its size. As our joint essay suggests, this scheme is undemocratic and purposely frustrates pure majorities, but it has been an enduring feature of the Constitution from the beginning. While this might not prevent the Senate from sometimes endorsing measures that might enhance federal power at the expense of State sovereignty, it continues to frustrate lawmaking generally, which of course was one of the aims of the original design. 

If the Senate, however, has not adequately protected State sovereignty, it has not done it by itself.  Nothing becomes a federal law, unless the House has agreed, the President signs the bill (or Congress is able to override his veto), and the courts have upheld the measures. Similarly, no one becomes an Article III judge, particularly after the scheme adopted by the Senate to frustrate the recess appointment authority, unless the President has nominated that person in the first place and a majority of the Senate has agreed. Changing the status quo, in other words, cannot happen unless the branches are in agreement. It will be important to keep that in mind in the years ahead, regardless of whether one favors obstruction or not. Controlling one chamber makes obstruction possible, but if there is serious interest in doing anything more than that then there must be coordination, which, even after the ratification of the Seventeenth Amendment, the Constitution rarely makes easy.

As for whether the Senate has degenerated in stature or quality, the causes remain complex and are not simply the result of the Seventeenth Amendment. Among the things that may have been lost and difficult to restore is the civic republicanism—the public spirit or commitment to a common good—so many Founders had hoped to see in the Senate. Along with that loss, a sense of civility or mutual respect seems, all too often, to be absent in public debates.  To be sure, we should not over-glamorize our past and over-estimate how much of that spirit ever was a constant or common feature of the Senate; the beating of Massachusetts Senator Charles Sumner on the Senate floor in 1851 is just one example of how that spirit was absent before the Seventeenth Amendment. At least, Senators today fight with words and not with weapons.

It is likely that the fighting in the Senate reflects the divisions within the populace itself.  This should not be surprising. It is inevitable that, given popular election of Senators, the electorate will choose someone with similar views. It is further inevitable that the more intense the divisions, the more difficult finding common ground may be. Even so, we should hope it is not asking too much for Senators to be seen at work—that is, to be seen by the public actually engaging with the big issues of the day—and not parliamentary maneuvering reflecting nothing more than petty or partisan bickering. 

It is unlikely we have ever had a genuinely golden era in which the Senate—or any other of our institutions—performed ideally. We know that, from the start, the Constitution was not a perfect document, and every era, as well as every institutional arrangement established by the Constitution, has had its flaws. The least we can do is to understand them and see what can be done to solve them. Put differently, the Senate has never been able to take its stature as the upper chamber for granted. Like every other institution established by the Constitution, the Senate has had to earn its respect each and every day, and that remains true regardless of the era, political composition of the Senate, and issues dividing the American people.

Michael J. Gerhardt Samuel Ashe Distinguished Professor in Constitutional Law & Director, Program in Law and Government, University of North Carolina School of Law

Article I, Section 7 of the Constitution creates certain rules to govern how Congress makes law. Its first Clause—known as the Origination Clause—requires all bills for raising revenue to originate in the House of Representatives. The second—the Presentment Clause—requires all laws to be presented to the President for his signature or veto. And the third Clause—the Presentment of Resolutions Clause—prevents Congress from sidestepping the Presentment Clause. Taken together, these rules channel lawmaking through a process that promotes thorough deliberation over the wisdom of any new legislation.

The Origination Clause derived from an English parliamentary practice requiring all money bills to have their first reading in the House of Commons. The Framers borrowed this practice, hoping that it would confer the “power of the purse” on the legislative body most responsive to the people—the House of Representatives. As such, only the House may introduce bills “for raising revenue,” although the Senate is explicitly empowered to amend House-originated bills. Any other type of bill may originate in either the Senate or the House.

The Origination Clause was part of the Great Compromise. A concession to the larger states, which were dissatisfied with the smaller states’ disproportionate power in the Senate, it limits the power to introduce tax and tariff bills exclusively to the House of Representatives, where the larger states enjoyed greater representation. But while the Clause was hotly contested during the Constitutional Convention and the ratification debates, the Senate’s power to amend revenue-raising bills has deprived the Clause of much practical significance.

The Presentment Clause is no such paper tiger. The Clause provides that a bill can become a law only if, after passage by both Houses of Congress, it is presented to the President. The President then has ten days either to sign the bill into law or reject the bill and return it to Congress with an explanation of his or her objections.

If the President rejects the bill, he or she must return it to the House in which it originated. This process is known as a “veto,” though the word does not actually appear in the text of the Constitution. Congress may then modify the bill, responding to the President’s stated objections, to increase the likelihood of presidential approval. Alternatively, Congress may override the President’s veto if both Houses can pass the bill by at least a two-thirds vote. The bill then becomes law without further “presentment” to the President.

Matters are more complicated if the President does nothing by the end of the ten-day window. If Congress is in session, the bill becomes a law—a phenomenon known as “default enactment.” If Congress is out of session, however, the President has no place to return a bill that he or she wishes to veto. In those circumstances, the President may effectively veto the bill by taking no action. This process, first used by James Madison during an intersession recess in 1812, is known as a “pocket veto.” Congress may not override a pocket veto.

What exactly constitutes an adjournment for the purposes of a pocket veto has been a source of conflict. Does any adjournment count, for example, or just those adjournments that end the legislative session? The Supreme Court provided some insight in the Pocket Veto Case (1929), holding that “the determinative question” is whether Congress has adjourned in a manner “that ‘prevents’ the President from returning the bill to the House in which it originated within the time allowed.” Because both Houses had adjourned in the Pocket Veto Case, even though the legislation session was not over, a pocket veto was permissible.

The Court refined that interpretation in Wright v. United States (1938), ruling that a three-day adjournment of just one House of Congress does not permit a pocket veto. For brief adjournments of a single House, the Court ruled, the originating House may designate an agent, such as a Secretary or Clerk, to receive a vetoed bill. Modern practice is more fluid than Wright may suggest, however. Several recent Presidents have purported to pocket veto bills even when the originating House of Congress has designated an agent to receive a veto message.

The third and final Clause, known as the Presentment of Resolutions Clause, concerns the presentment of orders, resolutions, and any issues other than bills. The Presentment of Resolutions Clause was appended at the behest of James Madison, who foresaw the possibility that Congress might circumvent the presentment process by fashioning a bill as a “resolution” or “order.” To avoid that circumvention, the Clause says that any issue requiring the concurrence of the House and the Senate—whatever that issue happens to be called—must be presented to the President. A congressional declaration of war, for example, comes in the form of a joint resolution. Although it is not denominated a “bill,” it must be submitted for presidential approval.

Not all issues require presentment, however. The Clause explicitly exempts questions of adjournment and, under Article V, congressionally proposed amendments to the Constitution are sent to state legislatures for approval, not to the President. More generally, resolutions that are not meant to become law are not subject to presentment. Congress may, for example, adopt concurrent resolutions setting budgetary goals without seeking presidential approval. The same holds for resolutions that apply only to the operation of a particular House, such as imposing censure on a House member or expressing “the mood” of the House. By the same token, legislative subpoenas are not presented to the president for his approval.

The Supreme Court reinforced the Presentment of Resolutions Clause (and vindicated Madison’s prediction) most famously in I.N.S. v. Chadha (1983), ruling that it was unconstitutional for Congress to use a resolution to overturn an executive action. The Court reasoned that such a “legislative veto” circumvents the presentment process and infringes on the President’s power to execute the laws.

Nicholas Bagley Professor of Law, The University of Michigan Law School

Thomas A. Smith Professor of Law, University of San Diego School of Law

Some of the most urgent debates in constitutional law arise when courts are asked to enforce those parts of the Constitution—including Article I, Section 7—that structure how Congress makes law.

Although the point is often overlooked, most of the constitutional rules governing lawmaking need no judicial enforcement. The House of Representatives, for example, does not attempt to claim the power to make a law without Senate involvement. Nor do the House and Senate believe that their bills have the force of law even if the President has vetoed them. The rules of bicameralism and presentment are so entrenched in our constitutional system that it would be unthinkable to disregard them.

From time to time, however, complex questions do arise about whether Congress and the President have been faithful to the lawmaking process that Article I, Section 7 prescribes. When that happens, the courts may be enlisted to uphold the constitutional design. Courts must then confront a difficult question: how stringently should they apply the open-ended terms of the Constitution?

Take, for example, recent litigation over the Affordable Care Act (ACA), which reformed the nation’s health-care system. Technically, the ACA adhered to the Origination Clause, which says that “[a]ll Bills for raising Revenue shall originate in the House of Representatives.” The bill that became the ACA was first introduced and passed in the House as the “Service Members Home Ownership Tax Act of 2009.”

That House-originated bill, however, had nothing whatsoever to do with health care. The bill became the ACA only when the Senate struck the language of the original bill and replaced it with the text of the health-care reform law. Nothing of the original bill remained.

After the ACA’s adoption, lawsuits were filed arguing that this “shell bill” procedure violated the Origination Clause. The challengers had a point. The Origination Clause is supposed to give the House of Representatives the first say in whether and when to exercise the power to tax. Although the Senate can “propose and concur with Amendments as on other bills,” allowing the Senate to completely replace a House-originated bill would effectively strip the House of its gatekeeping function. The challengers therefore asked the courts to invalidate the ACA in its entirety.

Wisely, however, the courts have unanimously turned aside the constitutional challenge. The shell bill procedure was not born with the ACA; it is, in fact, a procedure that the Senate has used for 200 years. And the courts have never felt it necessary to examine whether Senate amendments are “germane” to a House-originated bill. In the 1911 case of Flint v. Stone Tracy Company, for example, the Supreme Court affirmed the constitutionality of a Senate amendment that substituted a corporate tax for a House-originated inheritance tax.

In effect, the courts have deferred to Congress’s longstanding practice, even though the practice left the Origination Clause with little work to do. Yet the Republic has not fallen. Over time, the give-and-take between the House and the Senate has generated a stable equilibrium that has met with general approval. The courts are rightly reluctant to upset that hard-won equilibrium.

Indeed, the courts’ refusal to breathe new life into the Origination Clause may reflect a tacit recognition that the Clause has outlived its original purpose. Prior to the adoption of the Seventeenth Amendment, state legislatures selected the Senators that would represent the states in Congress. Today, both Houses can credibly claim to speak directly for the people, reducing the need for the House to retain any special control over bills to raise revenue.

A movement is afoot, however, to use constitutional litigation as a sword to undo what Congress has created. Couched in the rhetoric of restoring the Constitution’s “original meaning,” the movement’s goal is to clip Congress’s wings and undo its handiwork. The lawsuits against the ACA exemplify that movement.

But the Constitution’s meaning was not fixed in stone at the moment of its ratification. The Constitution has instead accrued meaning from history, practice, and an evolving sense of its broader purposes. The Origination Clause may do little work in the modern era, but that’s OK. Times change; so too does the way we read the Constitution.

To be sure, on rare occasions, judicial intervention to enforce Article I, Section 7 may well be necessary. In INS v. Chadha (1983), for example, the Supreme Court was rightly troubled at how a one-house veto over executive-branch action might enable Congress to retain control over the execution of the laws.

But that kind of intervention should be the exception, not the norm. Otherwise, judicial superintendence of the machinery of lawmaking risks thwarting the will of the people without adequate justification. When it comes to the Origination Clause, the courts have so far resisted the blandishments of those who seek to invalidate Congress’s handiwork in the name of restoring the Constitution’s original meaning. They should continue to do so.

Nicholas Bagley Professor of Law, The University of Michigan Law School

One of the most interesting recent developments in our understanding of Article I, Section 7 concerns its third Clause, known as the Presentment of Resolutions Clause, or the Order, Resolution, and Vote (ORV) Clause. Subject to a major revelation in the early twenty-first century, its story illustrates originalist legal scholarship in action. (Originalism is an approach to the Constitution that seeks to interpret it according to its original public meaning.) Though the ORV Clause was widely understood for more than 200 years to be a failsafe against Congress disguising a bill as a “resolution” and thus circumventing the Presidential presentment requirement, Seth Barrett Tillman’s work revealed that the Framers’ intent was quite likely otherwise.

The popular interpretation of the ORV Clause comes from James Madison’s account of the 1787 Constitutional Convention. Madison proposed that Clause 2, the Presentment Clause, be amended to include the phrase “or resolve” after “bill,” achieving the same effect as that popularly attributed to the ORV Clause. Though Madison’s proposal was rejected, Virginia delegate Edmund Randolph successfully proposed the ORV Clause the following day. According to Madison, the ORV Clause was simply a “new form” of his failed amendment. As practically the only surviving commentary, Madison’s oddly simplistic account of the ORV Clause was accepted uncritically by the Supreme Court and legal scholars.

What Tillman uncovered was that Madison’s interpretation of the ORV Clause is actually inconsistent with the constitutional text. Tillman’s 2005 research suggests that the ORV Clause is not merely an anti-circumvention device, but also subjects to presentment certain legislative actions not addressed in the Presentment Clause. These actions include a range of single-House actions authorized by prior, bicameral legislation. That Congress may legislatively authorize a single House to act alone contradicts more than two centuries of legal scholarship and Supreme Court decisions—most notably, INS v. Chadha (1983). In Chadha, the Court struck down the “legislative veto” by the House of Representatives for failing to comply with the principle of bicameralism.

Tillman’s findings also neatly resolved an otherwise puzzling Supreme Court decision from 1798. In Hollingsworth v. Virginia, the Court ruled in a brief opinion that Congress need not have presented the Eleventh Amendment to President Washington for his approval. Subsequent decisions have interpreted the holding to mean simply that constitutional amendment resolutions are exempt from the presentment requirement. Under Tillman’s interpretation, however, the Hollingsworth mystery is solved: the ORV Clause requires that an order, resolution, or vote must be presented to the President only if it is authorized by a prior statute (“to which the Concurrence of the Senate and House or Representatives may be necessary . . . ”). Because Congress does not rely on any statutory authorization when it passes constitutional amendments, the ORV Clause does not apply, and Congress thus need not present constitutional amendment resolutions to the President.

Though his interpretation of the ORV Clause revealed a long-neglected domain of legislation in which Congress may delegate authority to single Houses or even single congressional committees, Tillman failed to define the limits of these delegations. In a published response, Professor Gary Lawson attempted to do just that. Though Lawson generally agreed with Tillman’s interpretation of the ORV Clause, he found that there likely exists only one category of legislative action to which the ORV Clause could apply: the issuance of legislative subpoenas.

According to Lawson’s reading of the Constitution, Congress may not delegate legislative authority simply to anyone—not to the President, nor the federal courts, nor even itself. The ORV Clause thus cannot require presentment for any actions made by a single House or committee pursuant to delegated legislative authority, because such delegation is constitutionally impermissible. Further, as Lawson interprets the Presentment Clause, the only type of legislation that can become a law is a bill. The ORV Clause, however, alludes to an order, resolution, or vote that “shall take Effect” upon approval of the President or passage by two-thirds of the Senate and the House. If only a bill may become a law, Lawson asks, then how else may an order, resolution, or vote “take Effect”? His answer is that Congress, under the authority of the Necessary and Proper Clause, may enact legislation authorizing each House to issue subpoenas.

While the Constitution grants neither House of Congress the power to issue subpoenas, a law authorizing the issuance of subpoenas by individual Houses could be valid under the Necessary and Proper Clause, which allows Congress “to make all laws which shall be necessary and proper for carrying into Execution” powers elsewhere granted to the respective Houses. As Lawson allows, the power to issue subpoenas may be necessary and proper for carrying into execution the impeachment powers the Constitution grants to each of the Houses. Though it could not become a law, a legislative subpoena would “take Effect” by compelling testimony in an impeachment hearing. In practice, then, the ORV Clause would require that before any single House issues a subpoena on the authority of a prior statutory authorization, the subpoena be presented to the President for his approval or veto, just as was the prior legislation that authorized the single-House subpoena.

The Tillman-Lawson analysis may strike one as excessively technical, but in this as in many other parts of our Constitution, the devil is in the details. The Supreme Court might revisit Chadha, and when it does, these scholars’ arguments may suddenly take on the relevance of living, and contested, law.

Further Reading:

Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia Was Rightly Decided, and Why INS v. Chadha Was Wrongly Reasoned, 83 Texas L. Rev. 1265 (2005).

Gary Lawson, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 Tex. L. Rev. 1373 (2005).

Thomas A. Smith Professor of Law, University of San Diego School of Law

Article I, Section 10 contains a long, somewhat diverse list of prohibitions on the power of the states to engage in certain activities. Understanding its significance depends on first placing it within the larger framework of Article I, which is primarily devoted to setting out the structure of Congress and then enumerating its legislative powers. Those activities occupy Sections 1 through 8. Section 9 prohibits a broad array of activities by the federal government, which run the gamut from weakening the privilege of the writ of habeas corpus to taxing exports from the states.

Section 10 imposes a similar list of prohibitions on the powers of the states. Clause 1 contains absolute prohibitions that Congress cannot waive. Clauses 2 and 3 impose prohibitions that Congress can waive—presumably by legislation, although the text does not make clear whether any joint resolution is subject to a presidential veto. It is difficult to explain why the prohibitions found in Clause 1 cannot be waived by Congress while those in the last two clauses can be. But in both cases, the state interests are made subordinate to those of the national government.

These prohibitions in Section 10 can be divided into several subclasses. One group imposes on the states some of the restrictions that Section 9 imposed on Congress: the power to pass bills of attainder or ex post facto laws, or to grant titles of nobility. A second category guarantees that matters of war and diplomacy belong primarily or exclusively to the national government. The states are prohibited from forming compacts with foreign nations or even with each other without the assent of Congress.

A third category applies to financial matters, dealing with such issues as the power to coin money, emit bills of credit, or lay duties on imports and exports. During the Revolutionary War, both the Continental Congress and the states resorted to the massive issuance of various instruments of credit, unsecured by adequate taxation. The resulting depreciation in the value of these instruments, coupled with the corresponding inflation of prices, created a strong consensus to empower Congress to secure the public credit of the United States by levying its own taxes and limiting, though hardly eliminating, the financial powers of the states. Under the Articles of Confederation, both the Continental Congress and the states had the authority to coin money, but only Congress could fix its “alloy and value.” The evident intention is to give that power exclusively to Congress under Article I, Section 8, Clause 5.

Section 10, Clause 1 contains a general prohibition against states emitting letters of credit, unless, as it came to be understood, they were drawn on some specific fund set aside for that purpose. The result reads like a compromise designed to prevent the open-ended use of state credit without shutting down the capacity of the states to borrow at all. These provisions, together with the requirement that only gold and silver could be used for legal tender, stem from the desire to insulate other states in the union from the fiscal shocks created by any single state.

A fourth category coordinates the respective powers of the state in domestic and foreign affairs. There is an evident tension between the absolute prohibition on “any treaty, alliance, or confederation” found in Clause 1, and the apparent authorization to enter into any agreement or compact with another state or foreign power so long as Congress consented. Finally, it is worth noting that the Union was considered sufficiently fragile that Section 10, Clause 3 allows for the states to “engage in War,” waiving the requirement of congressional consent in cases of imminent danger. Indeed, these military issues loomed large in the Founding period because Article I, Section 8, Clauses 15 and 16 and Article II, Section 2, Clause 1 also contain detailed provisions for the maintenance of state militias and the circumstances under which they could also be called into the service of the United States. Lastly, the Guarantee Clause of Article IV, Section 4 deals primarily with the threat of invasion for which either congressional or presidential intervention is then contemplated. The mechanics of all these provisions are exceedingly complex, and none are set out in the Constitution.

The single provision of Article I, Section 10 that has brought forth the greatest amount of litigation is the Contracts Clause, which categorically declares, “No state shall . . . pass any Law Impairing the Obligation of contract.” Like other limitations on the financial powers of the states, this Clause reflected the fears of the propertied classes who favored the adoption of the Constitution that the state legislatures might well enact laws adversely affecting the just rights of creditors. After 1810, the expansive definition of the Contracts Clause revealed how broadly the Supreme Court, under Chief Justice John Marshall, viewed the danger of intrusive state legislation. Thus from as early as Fletcher v. Peck (1810) and Dartmouth College v. Woodward (1819), the Clause was held to apply not only to private agreements, but also to state charters that could not be revoked except upon payment of just compensation to proprietors. It was also understood that the Contracts Clause was not limited to debtor-creditor relationships, but applied to all contracts, notably including charters of incorporation granted by legislatures.

In addition, the Contracts Clause was read to afford protection to both sides of the agreement—buyer and seller, creditor and debtor, grantor and grantee. The Supreme Court also held, in Sturges v. Crowninshield (1819) that the Contracts Clause protected rights under contracts previously formed. Yet by a 4-3 vote, with Chief Justice Marshall and Justice Story dissenting, the Court held in Ogden v. Saunders (1827) that the Contract Clause did not protect from legislative invalidity any contracts made after a particular statute was enacted. The early cases also recognized a police power exception of uncertain scope for cases dealing with the public safety, health, general welfare, and morals. Finally, there was additional uncertainty as to whether the Contracts Clause (like the Takings Clause of the Fifth Amendment) provided protection against state judicial as well as legislative actions.

The adoption of the Fourteenth Amendment, which imposed many direct limitations on state power, subject to both judicial and congressional enforcement, meant that the Contracts Clause was no longer the only avenue to impose new limitations on the exercise of state power. Nonetheless, in this context, the Clause’s relative specificity has led to extensive litigation over the question of whether its systematic application, like that of the Due Process and Equal Protection Clauses, continues to impose meaningful restrictions on major programs from mortgage moratoria to pension plan solvency, from bankruptcy reform to government lending practices.

The larger debate today raises in its most general form the question of whether rational basis review or higher scrutiny should be applied to claims brought under the Contracts Clause, both as to the scope of its basic coverage and the size and power of the exceptions. This debate is but one of many facets of the choice between the classical liberal and progressive views of constitutionalism, which pivoted sharply toward the progressive view during the 1930s, where for the most part it remains today.

Richard A. Epstein Laurence A. Tisch Professor of Law and Director of the Classical Liberal Institute, New York University School of Law

Jack Rakove Professor of History, Political Science and, by courtesy, Law, William Robertson Coe Professor of History and American Studies, Stanford University

It is commonly said that John Locke, the champion of social contract theory and natural rights, was one of the intellectual godfathers of the American Constitution. Yet for Locke and other social contract theorists, the major challenge was to figure out how ordinary individuals could form a state that allowed them to escape the uncertainties of living in the state of nature. The influence of natural rights theory is evident in many state constitutions, like the Massachusetts Constitution of 1780, whose explicit purpose is to form a stable order to protect “the natural rights” of its members. See Preamble, Massachusetts Constitution of 1780.

The formation of a national government is not intended primarily to secure a safe passage out of the state of nature, a task which should already have been successfully done by the states.  Rather it was to put into place a complex agreement among states that equitably distributes powers among coequal sovereigns. That second inquiry has little to do with the preservation of natural rights as such. The difficulty of undertaking this is reflected in the structure of Article I, which begins by defining the legislative power, and concludes in Section 10 by listing the prohibitions of activities that can be undertaken only by the states.

The confusion, however, only deepens because some of the most important provisions of Article I, Section 10, may address individual rights if they are understood, as Professor Rakove notes, as federal checks on what sovereign states are allowed to do to their citizens. In some of these cases, as with the adoption of ex post facto laws and bills of attainder, the concern is not with reserving to the national government certain tasks by denying them to the states. Article I, Section 9, Clause 3 prohibits the Congress from passing either bills of attainder or ex post facto laws, in the same fashion that Article I, Section 10, Clause 1 does for the states. The identical nature of the two prohibitions has nothing to do with the distribution of powers between levels of government and everything to do with the conviction that singling out certain people for special treatment, or imposing criminal punishments retroactively for actions that were legal when undertaken, reads very much like a natural law protection capable of universal application. Indeed, much of the debate at the Constitutional Convention was not about the propriety of these prohibitions, but about whether they were needed at all, given that the prohibited activities were universally condemned as odious in the natural law tradition. See Daniel Troy, Ex Post Facto, in The Heritage Guide to the Constitution.

One happy circumstance is that, for the most part, these two clauses have not played a central role in constitutional litigation. The same cannot be said of the Contracts Clause, which reads in part like a jurisdictional limitation and in part like a protection of the natural right to contract. The Clause itself was adopted from the earlier provision in the Northwest Ordinance of 1787, which provided: “It is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.”

One interpretive challenge asks which elements mentioned in the Northwest Ordinance carry over to the slimmed-down Contracts Clause, evidently written in more categorical terms. Part of the difficulty stems from the confusion over why the Framers included this Clause in the Constitution in the first place. One common explanation, offered by Professor Michael McConnell, is that it was intended to protect interstate contracts from assaults by state governments. See Michael W. McConnell, Contract Rights and Property Rights: A Case Study in the Relationship Between Individual Liberties and Constitutional Structure, 76 Cal. L. Rev. 267 (1988).

While true, it does not explain why the Clause applies to all local contracts as well. A second explanation, which McConnell also discussed, is directed toward local abuses such as debtor’s relief laws. Thus in speaking about Article I, Section 10 in The Federalist No. 44, James Madison denounced states’ “sudden changes and legislative interferences” in the business affairs of their citizens, even for transactions that take place wholly within one state.

The Northwest Ordinance of 1787 also raises more specific interpretive difficulties. The Ordinance only protected those contracts in place before the law went into effect, which was adopted for the Contracts Clause in Ogden v. Saunders (1827) over the dissents of both Justices Marshall and Story. The issue bristles with difficulties. One powerful objection to the Marshall/Story position is that it flies in the face of hundreds of years of legal history by refusing to give credit to statutes of limitations, recordation statutes, and the statute of frauds, all of which necessarily impair certain contracts that lack the requisite formalities in order to increase the security of exchange overall. But it hardly follows that the prospective reading of the Contracts Clause has to be rejected in order to accommodate these common-sense cases. In this regard, it is instructive to compare the Contracts Clause with the Takings Clause, where the latter allows for the taking of property for public use on payment of just compensation. Why not therefore read a just compensation exception into the Contracts Clause?

That position is not as far-fetched as it sounds. In West River Bridge Co. v. Dix (1848) the question was whether the United States could condemn a bridge that had been authorized by government charter. It had earlier been held that the Contracts Clause applied to government charters in Dartmouth College v. Woodward, (1819), in which New Hampshire simply sought to take over Dartmouth College, causing harm that could not be easily cured by paying compensation. But in Dix, it would have been absurd to say that no state could ever condemn any property for public use on payment of just compensation whenever that property had been acquired by contract, either from the state or from some private party. Hence the Court read in a just compensation exception that brought the Contracts Clause closer to the Takings Clause, again by a process of textual implication.

In an earlier work I articulated an intermediate position that first gives the Contracts Clause prospective effect, but then allows for statutes that meet a general just compensation test. See Richard A. Epstein, Toward a Revitalization of the Contract Clause, 51 U. Chi. L. Rev. 703 (1984). Thus, the additional security of transaction from the statutes of limitation and the like improve the lot of all individuals governed by them, so long as they do not selectively apply to benefit one group of individuals, say debtors, at the expense of others, say creditors.

That same position can apply to efforts to limit the remedies given for breach of existing contracts, as in United States Trust Co. of New York v. New Jersey (1977). In that case, the Court refused to let states eliminate bond covenants in loan agreements intended to prevent the diversion of cash to other purposes without also offering some substitute protection to the lenders. Adopting this approach for both prospective and retroactive changes of contract terms allows for a consistent application of the Contracts Clause to all contracts, and thus meets a major concern of both Marshall and Story: that a general law banning all future contracts would, under the majority opinion, escape any possibility of invalidation.

It is also clear that a just compensation exception is not the only one that has to be read into the Contracts Clause for it to make sense. Some contracts are formed by fraud or duress, and surely these common law defenses to their enforcement are not upset by the constitutional requirements. At the very least, that simple observation means that some version of the police power must be read into the Constitution to cover these eventualities. It was generally addressed in Brown v. Maryland (1827), which dealt with the import/export clause in Article I, Section 10, Clause 2, and recognized that “the police power” covered at the very least “the removal of gunpowder.” Brown gives rise in turn to the interpretive challenge of how to identify what forms of regulation survive the literal application of the Contracts Clause beyond the obvious cases of gunpowder and other potential nuisances.

It is on this issue that the difference between the classical liberal and progressive view is most vivid. The key case for these purposes is Home Building & Loan Ass’n v. Blaisdell (1934), which held that “emergency legislation” that allowed for the postponement of interest payments on a mortgage was not an impairment of contract because of the dodgy rationale that merely “modifying the remedy” does not necessarily impair the obligation of contract, even if the creditor is left worse off in consequence.

At this point the just compensation requirement in Dix is effectively eliminated in many cases of preexisting contracts. The upshot is that it leads to the adoption of a general “rational basis” test in contract cases—similar to that which the Supreme Court adopted with respect to other forms of retroactive legislation in connection with the Due Process Clause of the Fifth Amendment in Pension Benefit Guaranty Corp. v. R.A. Gray & Co. (1984) and the Takings Clause of that same Amendment in  Connolly v. Pension Benefit Guaranty Corp. (1986), as they applied to the federal government. The importance of this shift in connection with both the Contracts and the Takings Clause cannot be overestimated, given the huge shift in power from private parties to the national government.

For those, like myself, who believe in The Classical Liberal Constitution, this constitutional transformation energized huge political factions that, as Madison saw, worked against the interest of the public as a whole. In contrast, progressive thinkers tolerated the increased level of government activity. As Justice Thurgood Marshall wrote in Usery v. Turner Elkhorn Mining Co. (1976), virtually “all legislative Acts adjusting the burdens and benefits of economic life,” subject to a narrow exception for laws found “arbitrary and irrational,” fall within Congress’s authority. By implication the same level of deference was afforded to state legislatures. At this point, there is little distinctive left to the Contracts Clause, which is unwisely swallowed up by the general presumption in favor of all economic regulations.

Richard A. Epstein Laurence A. Tisch Professor of Law and Director of the Classical Liberal Institute, New York University School of Law

The various clauses in this Section cover a wide array of issues, and these clauses do leave some questions open as to just how rigorous are the limitations being imposed on the authority of the states. Yet there is another sense in which the Section as a whole retains a unifying theme. The existence of these limitations demonstrates that the individual states no longer possessed anything resembling the traditional conception of sovereignty. That famous word never appears in the text of the Constitution, although it had been part of the Articles of Confederation. In designing a federal system, however, the Framers of the Constitution were effectively asserting that the states no longer possessed a full array of sovereign powers. There were emergency conditions when the states could use a modicum of military force, if their militia was in good shape. But for all practical purposes, the Constitution denied the states the ability to make war and conduct diplomacy with foreign nations—both traditional markers of the sovereignty of a modern nation-state.

The restrictions on the internal legislative powers of the states—as for example in laws relating to the obligation of contracts—similarly derogated from any claim to sovereignty. Of course, the states retained enormous legislative powers that would continue to dominate the business of American governance for decades to come. But the idea that the states remained sovereign entities, in the traditional meaning of the term, no longer made any sense.

The diminution of the sovereignty of the states was a topic that the Framers of the Constitution had considered in 1787. At James Madison’s insistence, the Virginia Plan included a clause authorizing the national legislature to negative (or veto) state laws “contravening . . . the Articles of Union.” Madison personally believed that this power should be applied “in all cases whatsoever,” so that the national government could not only defend itself against the legislative interference of the states, but also intervene within the states to protect minorities against unjust legislation. In the end, to Madison’s deep disappointment, the Convention rejected the negative. But Article I, Section 10 and the Supremacy Clause of Article VI partly (but only partly) fulfilled Madison’s purpose. It would take the adoption of the Fourteenth Amendment in 1868 and the eventual development of the incorporation doctrine to give the national government the authority that Madison had wanted for it all along.

None of these texts used the word sovereignty: that major category of political thinking had evidently disappeared from American constitutional practice. But emptying the word sovereignty of its content, as the Constitution did both by omitting its use and by vitiating its application, did not prevent its political and rhetorical exploitation. Politicians like John C. Calhoun and the Southern secessionists of 1860-61 could always argue that the states were the original sovereign members of the Union, and that their sovereignty could never wholly disappear.

How one could assert that residual sovereign authority of the states while the Union was safely functioning remained a puzzle. But when the Union did begin to encounter fundamental challenges to its continuance—as it did with the enactment of the Alien and Sedition Acts of 1798, or the Hartford Convention of 1815, or the Nullification Crisis of 1832-1833, and finally during the Secession Crisis of 1860-1861—the language of state sovereignty became more attractive. It could never describe how the Union was working, but it could become a formula for its collapse.

Jack Rakove Professor of History, Political Science and, by courtesy, Law, William Robertson Coe Professor of History and American Studies, Stanford University

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 14^th 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:

• For an explanation of how the Court relied mainly on the Necessary and Proper Clause to expand Congress’s reach during the era of New Deal Federalism, see Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional, 5 N.Y.U. J. of Law and Liberty 581 (2010).
• For a comparison of the two different strategies the Court has used to cut back on the expansive view of federal power that emerged from the New Deal, see Heather K. Gerken, Slipping the Bonds of Federalism, 128 Harv. L. Rev. 85 (2014).

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

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

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

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.

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 21^st 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:

• For more about the dilemma that federalism cases pose for federal judges, see Heather K. Gerken, Slipping the Bonds of Federalism, 128 Harv. L. Rev. 85 (2014), from which this essay is adapted.
• For a more thorough description of the shortcomings of the sovereignty account in federalism, see Heather K. Gerken, The Supreme Court, 2009 Term — Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4 (2010).

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