Section 1: Legislative Powers

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All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

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Separation of Powers and Checks and Balances

The Constitution nowhere contains an express injunction to preserve the boundaries of the three broad powers it grants, nor does it expressly enjoin maintenance of a system of checks and balances. Yet, it does grant to three separate branches the powers to legislate, to execute, and to adjudicate, and it provides throughout the document the means by which each of the branches could resist the blandishments and incursions of the others. The Framers drew up our basic charter against a background rich in the theorizing of scholars and statesmen regarding the proper ordering in a system of government of conferring sufficient power to govern while withholding the ability to abridge the liberties of the governed.

The Theory Elaborated and Implemented

When the colonies separated from Great Britain following the Revolution, the framers of their constitutions were imbued with the profound tradition of separation of powers, and they freely and expressly embodied the principle in their charters. But the theory of checks and balances was not favored because it was drawn from Great Britain, and, as a consequence, violations of the separation-of-powers doctrine by the legislatures of the States were common-place events prior to the convening of the Convention. Theory as much as experience guided the Framers in the summer of 1787.

The doctrine of separation of powers, as implemented in drafting the Constitution, was based on several principles generally held: the separation of government into three branches, legislative, executive, and judicial; the conception that each branch performs unique and identifiable functions that are appropriate to each; and the limitation of the personnel of each branch to that branch, so that no one person or group should be able to serve in more than one branch simultaneously. To a great extent, the Constitution effectuated these principles, but critics objected to what they regarded as a curious intermixture of functions, to, for example, the veto power of the President over legislation and to the role of the Senate in the appointment of executive officers and judges and in the treaty-making process. It was to these objections that Madison turned in a powerful series of essays.

Madison recurred to "the celebrated" Montesquieu, the "oracle who is always consulted," to disprove the contentions of the critics. "[T]his essential precaution in favor of liberty," that is, the separation of the three great functions of government, had been achieved, but the doctrine did not demand rigid separation. Montesquieu and other theorists "did not mean that these departments ought to have no partial agency in, or control over, the acts of each other," but rather liberty was endangered "where the whole power of one department is exercised by the same hands which possess the whole power of another department." That the doctrine did not demand absolute separation provided the basis for preservation of separation of powers in action. Neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were sufficient. Instead, the security against concentration of powers "consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others." Thus, "[a]mbition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place."

Institutional devices to achieve these principles pervade the Constitution. Bicameralism reduces legislative predominance, while the presidential veto gives to the Chief Magistrate a means of defending himself and of preventing congressional overreaching. The Senate's role in appointments and treaties checks the President. The courts are assured independence through good behavior tenure and security of compensation, and the judges through judicial review will check the other two branches. The impeachment power gives to Congress the authority to root out corruption and abuse of power in the other two branches. And so on.

Judicial Enforcement

Throughout much of our history, the "political branches" have contended between themselves in application of the separation-of-powers doctrine. Many notable political disputes turned on questions involving the doctrine. Inasmuch as the doctrines of separation of powers and of checks and balances require both separation and intermixture, the role of the Supreme Court in policing the maintenance of the two doctrines is problematic at best. And, indeed, it is only in the last two decades that cases involving the doctrines have regularly been decided by the Court. Previously, informed understandings of the principles have underlain judicial construction of particular clauses or guided formulation of constitutional common law. That is, the nondelegation doctrine was from the beginning suffused with a separation-of-powers premise, and the effective demise of the doctrine as a judicially-enforceable construct reflects the Court's inability to give any meaningful content to it. On the other hand, periodically, the Court has essayed a strong separation position on behalf of the President, sometimes with lack of success, sometimes successfully.

Following a lengthy period of relative inattention to separation of powers issues, the Court since 1976 has recurred to the doctrine in numerous cases, and the result has been a substantial curtailing of congressional discretion to structure the National Government. Thus, the Court has interposed constitutional barriers to a congressional scheme to provide for a relatively automatic deficit-reduction process because of the critical involvement of an officer with significant legislative ties, to the practice set out in more than 200 congressional enactments establishing a veto of executive actions, and to the vesting of broad judicial powers to handle bankruptcy cases in officers not possessing security of tenure and salary. On the other hand, the highly-debated establishment by Congress of a process by which independent special prosecutors could be established to investigate and prosecute cases of alleged corruption in the Executive Branch was sustained by the Court in a opinion that may presage a judicial approach in separation of powers cases more accepting of some blending of functions at the federal level.

Important as the results were in this series of cases, the development of two separate and inconsistent doctrinal approaches to separation of powers issues occasioned the greatest amount of commentary. The existence of the two approaches, which could apparently be employed in the discretion of the Justices, made difficult the prediction of the outcomes of differences over proposals and alternatives in governmental policy. Significantly, however, it appeared that the Court most often used a more strict analysis in cases in which infringements of executive powers were alleged and a less strict analysis when the powers of the other two Branches were concerned. The special prosecutor decision, followed by the decision sustaining the Sentencing Commission, may signal the adoption of a single analysis, the less strict analysis, for all separation of power cases or it may turn out to be but an exception to the Court's dual doctrinal approach.

While the two doctrines have been variously characterized, the names generally attached to them have been "formalist," applied to the more strict line, and "functional," applied to the less strict. The formalist approach emphasizes the necessity to maintain three distinct branches of government through the drawing of bright lines demarcating the three branches from each other determined by the differences among legislating, executing, and adjudicating. The functional approach emphasizes the core functions of each branch and asks whether the challenged action threatens the essential attributes of the legislative, executive, or judicial function or functions. Under this approach, there is considerable flexibility in the moving branch, usually Congress acting to make structural or institutional change, if there is little significant risk of impairment of a core function or in the case of such a risk if there is a compelling reason for the action.

Chadha used the formalist approach to invalidate the legislative veto device by which Congress could set aside a determination by the Attorney General, pursuant to a delegation from Congress, to suspend deportation of an alien. Central to the decision were two conceptual premises. First, the action Congress had taken was legislative, because it had the purpose and effect of altering the legal rights, duties, and relations of persons outside the Legislative Branch, and thus Congress had to comply with the bicameralism and presentment requirements of the Constitution. Second, the Attorney General was performing an executive function in implementing the delegation from Congress, and the legislative veto was an impermissible interference in the execution of the laws. Congress could act only by legislating, by changing the terms of its delegation. In Bowsher, the Court held that Congress could not vest even part of the execution of the laws in an officer, the Comptroller General, who was subject to removal by Congress because this would enable Congress to play a role in the execution of the laws. Congress could act only by passing other laws.

On the same day that Bowsher was decided through a formalist analysis, the Court in Schor utilized the less strict, functional approach in resolving a challenge to the power of a regulatory agency to adjudicate as part of a larger canvas a state common-law issue, the very kind of issue that Northern Pipeline, in a formalist plurality opinion with a more limited concurrence, had denied to a non-Article III bankruptcy court. Sustaining the agency's power, the Court emphasized "the principle that 'practical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III.'" It held that in evaluating such a separation of powers challenge, the Court had to consider the extent to which the "essential attributes of judicial power" were reserved to Article III courts and conversely the extent to which the non-Article III entity exercised the jurisdiction and powers normally vested only in Article III courts, the origin and importance of the rights to be adjudicated, and the concerns that drove Congress to depart from the requirements of Article III.

Bowsher, the Court said, was not contrary, because "[u]nlike Bowsher, this case raises no question of the aggrandizement of congressional power at the expense of a coordinate branch." The test was a balancing one, whether Congress had impermissibly undermined the role of another branch without appreciable expansion of its own power.

While the Court, in applying one or the other analysis in separation of powers cases, had never indicated its standards for choosing one analysis over the other, beyond inferences that the formalist approach was proper when the Constitution fairly clearly committed a function or duty to a particular branch and the functional approach was proper when the constitutional text was indeterminate and a determination must be made on the basis of the likelihood of impairment of the essential powers of a branch, the overall results had been a strenuous protection of executive powers and a concomitant relaxed view of the possible incursions into the powers of the other branches. It was thus a surprise, then, when in the independent counsel case, the Court, again without stating why it chose that analysis, utilized the functional standard to sustain the creation of the independent counsel. The independent-counsel statute, the Court emphasized, was not an attempt by Congress to increase its own power at the expense of the executive nor did it constitute a judicial usurpation of executive power. Moreover, the Court stated, the law did not "impermissibly undermine" the powers of the Executive Branch nor did it "disrupt the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions." Acknowledging that the statute undeniably reduced executive control over what it had previously identified as a core executive function, the execution of the laws through criminal prosecution , through its appointment provisions and its assurance of independence by limitation of removal to a "good cause" standard, the Court nonetheless noticed the circumscribed nature of the reduction, the discretion of the Attorney General to initiate appointment, the limited jurisdiction of the counsel, and the power of the Attorney General to ensure that the laws are faithfully executed by the counsel. This balancing, the Court thought, left the President with sufficient control to ensure that he is able to perform his constitutionally assigned functions. A notably more pragmatic, functional analysis suffused the opinion of the Court when it upheld the constitutionality of the Sentencing Commission. Charged with promulgating guidelines binding on federal judges in sentencing convicted offenders, the seven-member Commission, three members of which had to be Article III judges, was made an independent entity in the judicial branch. The President appointed all seven members, the judges from a list compiled by the Judicial Conference, and he could remove from the Commission any member for cause. According to the Court, its separation-of- powers jurisprudence is always animated by the concerns of encroachment and aggrandizement. "Accordingly, we have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch." Thus, to each of the discrete questions, the placement of the Commission, the appointment of the members, especially the service of federal judges, and the removal power, the Court carefully analyzed whether one branch had been given power it could not exercise or had enlarged its powers impermissibly and whether any branch would have its institutional integrity threatened by the structural arrangement.

Although it is possible, even likely, that Morrison and Mistretta represent a decision by the Court to adopt for all separation-of-powers cases the functional analysis, the history of adjudication since 1976 and the shift of approach between Myers and Humphrey's Executor suggest caution. Recurrences of the formalist approach have been noted. Additional decisions must be forthcoming before it can be decided that the Court has finally settled on the functional approach.

Bicameralism

By providing for a National Legislature of two Houses, the Framers, deliberately or adventitiously, served several functions. Examples of both unicameralism and bicameralism abounded. Some of the ancient republics, to which the Framers often repaired for the learning of experience, had two-house legislatures, and the Parliament of Great Britain was based in two social orders, the hereditary aristocracy represented in the House of Lords and the freeholders of the land represented in the House of Commons. A number of state legislatures, following the Revolution, were created unicameral, and the Continental Congress, limited in power as it was, consisted of one house.

From the beginning in the Convention, in the Virginia Plan, a two-house Congress was called for. The Great Compromise, one of the critical decisions leading to a successful completion of the Convention, resolved the dispute about the national legislature by providing for a House of Representatives apportioned on population and a Senate in which the States were equally represented. The first function served, thus, was federalism.Coextensively important, however, was the separation-of-powers principle served. The legislative power, the Framers both knew and feared, was predominant in a society dependent upon the suffrage of the people, and it was important to have a precaution against the triumph of transient majorities. Hence, the Constitution's requirement that before lawmaking could be carried out bills must be deliberated in two Houses, their Members beholden to different constituencies, was in pursuit of this observation from experience.

Events since 1787, of course, have altered both the separation-of-powers and the federalism bases of bicameralism, in particular the adoption of the Seventeenth Amendment resulting in the popular election of Senators, so that the differences between the two Chambers are today less pronounced.

Enumerated, implied, resulting, and inherent Powers

Two important doctrines of constitutional law-that the Federal Government is one of enumerated powers and that legislative powers may not be delegated-are derived in part from this section. The classical statement of the former is that by Chief Justice Marshall in McCulloch v. Maryland: "This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted." That, however, "the executive power" is not confined to those items expressly enumerated in Article II was asserted early in the history of the Constitution by Madison and Hamilton alike and is found in decisions of the Court;a similar latitudinarian conception of "the judicial power of the United States" was voiced in Justice Brewer's opinion for the Court in Kansas v. Colorado. But even when confined to "the legislative powers herein granted," the doctrine is severely strained by Marshall's conception of some of these as set forth in his McCulloch v. Maryland opinion. He asserts that "the sword and the purse, all the external relations and no inconsiderable portion of the industry of the nation, are intrusted to its government;" he characterizes "the power of making war," of "levying taxes," and of "regulating commerce" as "great, substantive and independent powers;" and the power conferred by the "necessary and proper" clause embraces, he declares, all legislative "means which are appropriate" to carry out the legitimate ends of the Constitution, unless forbidden by "the letter and spirit of the Constitution."

Nine years later, Marshall introduced what Story in his Commentaries labels the concept of "resulting powers," those which "rather be a result from the whole mass of the powers of the National Government, and from the nature of political society, than a consequence or incident of the powers specially enumerated." Story's reference is to Marshall's opinion in American Insurance Co. v. Canter, where the latter said, that "the Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty." And from the power to acquire territory, he continues, arises as "the inevitable consequence" the right to govern it.

Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds that ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the "rights expressly given, and duties expressly enjoined" by the Constitution; the power to impart to the paper currency of the Government the quality of legal tender in the payment of debts; the power to acquire territory by discovery; the power to legislate for the Indian tribes wherever situated in the United States; the power to exclude and deport aliens; and to require that those who are admitted be registered and fingerprinted; and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. Thus, in United States v. Curtiss-Wright Corp.,decided in 1936, Justice Sutherland asserted the dichotomy of domestic and foreign powers, with the former limited under the enumerated powers doctrine and the latter virtually free of any such restraint. That doctrine has been the source of much scholarly and judicial controversy, but, although limited, it has not been repudiated.

Yet, for the most part, these holdings do not, as Justice Sutherland suggested, directly affect "the internal affairs" of the nation; they touch principally its peripheral relations, as it were. The most serious inroads on the doctrine of enumerated powers are, in fact, those which have taken place under cover of the doctrine-the vast expansion in recent years of national legislative power in the regulation of commerce among the States and in the expenditure of the national revenues. Verbally, at least, Marshall laid the ground for these developments in some of the phraseology above quoted from his opinion in McCulloch v. Maryland.

Delegation of legislative Power

The History of the Doctrine of Nondelegability

The Supreme Court has sometimes declared categorically that "the legislative power of Congress cannot be delegated," and on other occasions has recognized more forthrightly, as Chief Justice Marshall did in 1825, that, although Congress may not delegate powers that "are strictly and exclusively legislative," it may delegate "powers which [it] may rightfully exercise itself." The categorical statement has never been literally true, the Court having upheld the delegation at issue in the very case in which the statement was made. The Court has long recognized that administra- tion of the law requires exercise of discretion,and that "in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives." The real issue is where to draw the line. Chief Justice Marshall recognized "that there is some difficulty in discerning the exact limits," and that "the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily." Accordingly, the Court's solution has been to reject delegation challenges in all but the most extreme cases, and to accept delegations of vast powers to the President or to administrative agencies.

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

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

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

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

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

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

Notice Clinton v. City of New York, 524 U.S. 417 (1998), in which the Court struck down the Line Item Veto Act, intended by Congress to be a delegation to the President, finding that the authority conferred on the President was legislative power, not executive power, which failed because the presentment clause had not and could not have been complied with. The dissenting Justices argued that the law was properly treated as a delegation and was clearly constitutional. Id. at 453 (Justice Scalia concurring in part and dissenting in part), 469 (Justice Breyer dissenting).

The Nature and Scope of Permissible Delegations

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

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

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

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

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

Filling up the details of statutes has long been the standard. For example, the Court upheld a statute requiring the manufacturers of oleomargarine to have their packages "marked, stamped and branded as the Commissioner of Internal Revenue . . . shall prescribe," rejecting a contention that the prosecution was not for violation of law but for violation of a regulation. "The criminal of-fence," said Chief Justice Fuller, "is fully and completely defined by the act and the designation by the Commissioner of the particular marks and brands to be used was a mere matter of detail."

Kollock was not the first such case, and it was followed by a multitude of delegations that the Court sustained. In one such case, for example, the Court upheld an act directing the Secretary of the Treasury to promulgate minimum standards of quality and purity for tea imported into the United States.

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

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

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

Standards.-Implicit in the concept of filling in the details is the idea that there is some intelligible guiding principle or framework to apply. Indeed, the requirement that Congress set forth "intelligible principles" or "standards" to guide as well as limit the agency or official in the performance of its assigned task has been critical to the Court's acceptance of legislative delegations. In theory, the requirement of standards serves two purposes: "it insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people, [and] it prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged."

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

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

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

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

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

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

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

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

Delegations to the President in Areas of Shared Authority

Foreign Affairs.-That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was asserted in United States v. Curtiss-Wright Corporation. There the Court upheld a joint resolution of Congress making it unlawful to sell arms to certain warring countries upon certain findings by the President, a typically contingent type of delegation. But Justice Sutherland for the Court proclaimed that the President is largely free of the constitutional constraints imposed by the nondelegation doctrine when he acts in foreign affairs. Sixty years later, the Court, relying on Curtiss-Wright, reinforced such a distinction in a case involving the President's authority over military justice.

Whether or not the President is the "sole organ of the nation" in its foreign relations, as asserted in Curtiss-Wright, a lesser standard of delegation is applied in areas of power shared by the President and Congress.

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

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

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

Delegations to States and to Private Entities

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

Delegations to Private Entities.-Statutory delegations to private persons in the form of contingency legislation have passed Court tests. Thus, statutes providing that restrictions upon the production or marketing of agricultural commodities are to become operative only upon a favorable vote by a prescribed majority of those persons affected have been upheld. The rationale of the Court is that such a provision does not involve any delegation of legislative authority, since Congress has merely placed a restriction upon its own regulation by withholding its operation unless it is approved in a referendum.

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

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

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

Particular Subjects or Concerns - Closer Scrutiny or Uniform Standard?

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

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

Crime and Punishment.-The Court has confessed that its "cases are not entirely clear as to whether more specific guidance is in fact required" for delegations relating to the imposition of criminal sanctions. It is clear, however, that some essence of the power to define crimes and set a range of punishments is not delegable, but must be exercised by Congress. This conclusion derives in part from the time-honored principle that penal statutes are to be strictly construed, and that no one should be "subjected to a penalty unless the words of the statute plainly impose it." Both

Schechter and Panama Refining - the only two cases in which the Court has invalidated delegations - involved broad delegations of power to "make federal crimes of acts that never had been such before." Thus, Congress must provide by statute that violation of the statute's terms - or of valid regulations issued pursuant thereto - shall constitute a crime, and the statute must also specify a permissible range of penalties. Punishment in addition to that authorized in the statute may not be imposed by administrative action.

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

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

Delegation and Individual Liberties.-It has been argued in separate opinions by some Justices that delegations by Congress of power to affect the exercise of "fundamental freedoms" by citizens must be closely scrutinized to require the exercise of a congressional judgment about meaningful standards. The only pronouncement in a majority opinion, however, is that even with regard to the regulation of liberty the standards of the delegation "must be adequate to pass scrutiny by the accepted tests." The standard practice of the Court has been to interpret the delegation narrowly so as to avoid constitutional problems.

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

Congressional Investigations

Source of the Power to Investigate

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

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

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

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

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

Investigations of Conduct of Executive Department

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

Investigations of Members of Congress

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

Investigations in Aid of Legislation

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

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

While Sinclair and McGrain involved inquiries into the activities and dealings of private persons, these activities and dealings were in connection with property belonging to the United States Government, so that it could hardly be said that the inquiries concerned the merely personal or private affairs of any individual.

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

One limitation on the power of inquiry which has been much discussed in the cases concerns the contention that congressional investigations often have no legislative purpose but rather are aimed at achieving results through "exposure" of disapproved persons and activities: "We have no doubt," wrote Chief Justice Warren, "that there is no congressional power to expose for the sake of exposure." Although some Justices, always in dissent, have attempted to assert limitations in practice based upon this concept, the majority of Justices has adhered to the traditional precept that courts will not inquire into legislators' motives but will look only to the question of power. "So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power."

In his book, Wilson continued, following the sentence quoted by the Chief Justice: "The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration.... It would be hard to conceive of there being too much talk about the practical concerns . . . of government." Congressional Government (1885), 303-304. For contrasting views of the reach of this statement, compare United States v. Rumely, 345 U.S. 41 , 43 (1953), with Russell v. United States, 369 U.S. 749 , 777 -778 (1962) (Justice Douglas dissenting).

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

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

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

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

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

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

In Deutch v. United States, 367 U.S. 456 (1961), involving an otherwise cooperative witness who had refused to identify certain persons with whom he had been associated at Cornell in Communist Party activities, the Court agreed that Deutch had refused on grounds of moral scruples to answer the questions and had not challenged them as not pertinent to the inquiry, but the majority ruled that the Government had failed to establish at trial the pertinency of the questions, thus vitiating the conviction. Justices Frankfurter, Clark, Harlan, and Whittaker dissented, arguing that any argument on pertinency had been waived but in any event thinking it had been established. Id. at 472, 475.

In Russell v. United States, 369 U.S. 749 (1962), the Court struck down contempt convictions for insufficiency of the indictments. Indictments, which merely set forth the offense in the words of the contempt statute, the Court asserted, in alleging that the unanswered questions were pertinent to the subject under inquiry but not identifying the subject in detail, are defective because they do not inform defendants what they must be prepared to meet and do not enable courts to decide whether the facts alleged are sufficient to support convictions. Justice Stewart for the Court noted that the indicia of subject matter under inquiry were varied and contradictory, thus necessitating a precise governmental statement of particulars. Justices Harlan and Clark in dissent contended that it was sufficient for the Government to establish pertinency at trial and noted that no objections relating to pertinency had been made at the hearings. Id. at 781, 789-793. Russell was cited in the per curiam reversals in Grumman v. United States, 370 U.S. 288 (1962), and Silber v. United States, 370 U.S. 717 (1962).

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

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

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

Protection of Witnesses; Constitutional Guarantees.- "[T]he Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights." Just as the Constitution places limitations on Congress' power to legislate, so it limits the power to investigate. In this section, we are concerned with the limitations the Bill of Rights places on the scope and nature of the congressional power to inquire.

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

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

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

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

Claims relating to the First Amendment have been frequently asserted and as frequently denied. It is not that the First Amendment is inapplicable to congressional investigations, it is that under the prevailing Court interpretation the First Amendment does not bar all legislative restrictions of the rights guaranteed by it. "[T]he protections of the First Amendment, unlike a proper claim of the privilege against self-incrimination under the Fifth Amendment, do not afford a witness the right to resist inquiry in all circumstances. Where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown."

Thus, the Court has declined to rule that under the circumstances of the cases investigating committees are precluded from making inquiries simply because the subject area was education or because the witnesses at the time they were called were engaged in protected activities such as petitioning Congress to abolish the inquiring committee.

However, in an earlier case, the Court intimated that it was taking a narrow view of the committee's authority because a determination that authority existed would raise a serious First Amendment issue. And in a state legislative investigating committee case, the majority of the Court held that an inquiry seeking the membership lists of the National Association for the Advancement of Colored People was so lacking in a "nexus" between the organization and the Communist Party that the inquiry infringed the First Amendment.

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

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

Sanctions of the Investigatory Power: Contempt

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

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

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

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

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

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

---------------------------

Among the best historical treatments are M.Vile, Constitutionalism and the Separation of Powers (1967), and W. Gwyn, The Meaning of the Separation of Powers (1965).

Thus the Constitution of Virginia of 1776 provided: "The legislative, executive, and judiciary department shall be separate and distinct, so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them, at the same time[.]" Reprinted in 10 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 52 (W. S. Windler ed., 1979). See also 5 id. at 96, Art. XXX of Part First, Massachusetts Constitution of 1780: "In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men."

"In republican government the legislative authority, necessarily, predominates." THE FEDERALIST, No. 51 (J. Cooke ed. 1961), 350 (Madison). See also id. at No. 48, 332-334. This theme continues today to influence the Court's evaluation of congressional initiatives. E.g., Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 273 -74, 277 (1991). But compare id. at 286 n. 3 (Justice White dissenting).

The intellectual history through the state period and the Convention proceedings is detailed in G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776- 1787 (1969) (see index entries under "separation of powers").

THE FEDERALIST Nos. 47-51 (J. Cooke ed. 1961), 323-353 (Madison).

Id. at No. 47, 325-326 (emphasis in original).

Id. at Nos. 47-49, 325-343.

Id. at No. 51, 349.

"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 , 635 (1952) (Justice Jackson concurring).

E.g., Field v. Clark, 143 U.S. 649 , 692 (1892); Wayman v. Southard, 23 U. S. (10 Wheat.) 1 , 42 (1825).

See Mistretta v. United States, 488 U.S. 361 , 415 -416 (1989) (Justice Scalia dissenting).

The principal example is Myers v. United States, 272 U.S. 52 (1926), written by Chief Justice Taft, himself a former President. The breadth of the holding was modified in considerable degree in Humphrey's Executor v. United States, 295 U.S. 602 (1935), and the premise of the decision itself was recast and largely softened in Morrison v. Olson, 487 U.S. 654 (1988).

Beginning with Buckley v. Valeo, 424 U.S. 1 , 109 -43 (1976), a relatively easy case, in which Congress had attempted to reserve to itself the power to appoint certain officers charged with enforcement of a law.

Bowsher v. Synar, 478 U.S. 714 (1986).

INS v. Chadha, 462 U.S. 919 (1983).

Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

Morrison v. Olson, 487 U.S. 654 (1988). See also Mistretta v. United States, 488 U.S. 361 (1989).

The tenor of a later case, Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Airport Noise, 501 U.S. 252 (1991), was decidedly formalistic, but it involved a factual situation and a doctrinal predicate easily rationalized by the principles of Morrison and Mistretta, aggrandizement of its powers by Congress. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989), reasserted the fundamental status of Marathon, again in a bankruptcy courts context, although the issue was the right to a jury trial under the Seventh Amendment rather than strictly speaking a separation-of-powers question. Freytag v. CIR, 501 U.S. 868 (1991), pursued a straightforward appointments-clause analysis, informed by a separation-of-powers analysis but not governed by it. Finally, in Public Citizen v. U. S. Department of Justice, 491 U.S. 440 , 467 (1989) (concurring), Justice Kennedy would have followed the formalist approach, but he explicitly grounded it on the distinction between an express constitutional vesting of power as against implicit vestings. Separately, the Court has for some time viewed the standing requirement for access to judicial review as reflecting a separation-of-powers component- confining the courts to their proper sphere- Allen v. Wright, 468 U.S. 737 , 752 (1984), but that view seemed largely superfluous to the conceptualization of standing rules. However, in Lujan v. Defenders of Wildlife, 504 U.S. 555 , 577 (1992), the Court imported the take-care clause, obligating the President to see to the faithful execution of the laws, into standing analysis, creating a substantial barrier to congressional decisions to provide for judicial review of executive actions. It is not at all clear, however, that the effort, by Justice Scalia, enjoys the support of a majority of the Court. Id. at 579-81 (Justices Kennedy and Souter concurring). The cited cases do seem to demonstrate that a strongly formalistic wing of the Court does continue to exist.

"The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power . . . must be resisted. Although not 'hermetically' sealed from one another, the powers delegated to the three Branches are functionally identifiable." INS v. Chadha, 462 U.S. 919 , 951(1983). See id. at 944-51; Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 , 64 -66 (1982) (plurality opinion); Bowsher v. Synar, 478 U.S. 714 , 721 -727 (1986).

CFTC v. Schor, 478 U.S. 833 , 850 -51, 856-57 (1986); Thomas v. Union Car-bide Agric. Products Co., 473 U.S. 568 , 587 , 589-93 (1985). The Court had first formulated this analysis in cases challenging alleged infringments on presidential powers, United States v. Nixon, 418 U.S. 683 , 713 (1974); Nixon v. Administrator of General Services, 433 U.S. 425 , 442 -43 (1977), but it had subsequently turned to the more strict test. Schor and Thomas both involved provisions challenged as infringing judicial powers.

INS v. Chadha, 462 U.S. 919 , 952 (1983).

Id. at 954-955.

Bowsher v. Synar, 478 U.S. 714 , 726 -727, 733-734 (1986).

While the agency in Schor was an independent regulatory commission and the bankruptcy court in Northern Pipeline was either an Article I court or an adjunct to an Article III court, the characterization of the entity is irrelevant and, in fact, the Court made nothing of the difference. The issue in either case was whether the judicial power of the United States could be conferred on an entity not an Article III court.

CFTC v. Schor, 478 U.S. 833 , 848 (1986) (quoting Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 , 587 (1985)).

Schor, 478 U.S. at 851.

478 U.S. at 856.

To be sure, the appointments clause did specifically provide that Congress could vest in the courts the power to appoint inferior officers, Morrison v. Olson, 487 U.S. 654 , 670 -677 (1988), making possible the contention that, unlike Chadha and Bowsher, Morrison is a textual commitment case. But the Court's separate evaluation of the separation of powers issue does not appear to turn on that distinction. Id. at 685-96. Nevertheless, the existence of this possible distinction should make one wary about lightly reading Morrison as a rejection of formalism when executive powers are litigated.

487 U.S. at 695 (quoting, respectively, Schor, 478 U.S. at 856, and Nixon v. Administrator of General Services, 433 U.S. at 443).

Mistretta v. United States, 488 U.S. 361 (1989). Significantly, the Court did acknowledge reservations with respect to the placement of the Commission as an independent entity in the judicial branch. Id. at 384, 397, 407-08. As in Morrison, Justice Scalia was the lone dissenter, arguing for a fairly rigorous application of separation-of-powers principles. Id. at 413, 422-27.

488 U.S. at 382.

THE FEDERALIST, No. 39 (J. Cooke ed. 1961), 250-257 (Madison).

Id. at No. 51, 347-353 (Madison). The assurance of the safeguard is built into the presentment clause. Article I, § 7, cl. 2; and see id. at cl. 3. The structure is not often the subject of case law, but it was a foundational matter in INS v. Chadha, 462 U.S. 919 , 944 -951 (1983).

17 U.S. (4 Wheat.) 31 6, 405 (1819).

See discussion under Article II, § 1, cl. 1, Executive Power: Theory of the Presidential Office, infra.

206 U.S. 4 6, 82 (1907).

17 U.S. (4 Wheat.) at 407.

17 U.S. at 411.

17 U.S. at 421.

2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1256 (1833). See also id. at 1286 and 1330.

26 U.S. (1 Pet.) 511 (1828).

26 U.S. at 542.

26 U.S. at 543.

Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 , 616 , 618-619 (1842).

Juilliard v. Greenman, 110 U.S. 421 , 449 -450 (1884). See also Justice Bradley's concurring opinion in Knox v. Lee, 79 U.S. (12 Wall.) 457 , 565 (1871).

United States v. Jones, 109 U.S. 513 (1883).

United States v. Kagama, 118 U.S. 375 (1886).

Fong Yue Ting v. United States, 149 U.S. 698 (1893).

Hines v. Davidowitz, 312 U.S. 52 (1941).

299 U.S. 304 (1936).

United States v. Shreveport Grain & Elevator Co., 287 U.S. 77 , 85 (1932). See also Field v. Clark, 143 U.S. 649 , 692 (1892).

Wayman v. Southard, 23 U.S. (10 Wheat.) 1 , 41 (1825).

The Court in Shreveport Grain & Elevator upheld a delegation of authority to the FDA to allow reasonable variations, tolerances, and exemptions from misbranding prohibitions that were backed by criminal penalties. It was "not open to reasonable dispute" that such a delegation was permissible to fill in details "impracticable for Congress to prescribe."

J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 , 406 (1928) ("In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination").

Mistretta v. United States, 488 U.S. 361 , 372 (1989). See also Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 , 398 (1940) ("Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility").

Wayman v. Southard, 23 U.S. (10 Wheat.) at 42. For particularly useful discussions of delegations, see 1 K. DAVIS, ADMINISTRATIVE LAW TREATISE Ch. 3 (2d ed., 1978); L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION ch. 2 (1965).

276 U.S. 394 (1928).

276 U.S. at 406.

276 U.S. at 409. The "intelligible principle" test of Hampton is the same as the "legislative standards" test of A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 , 530 (1935), and Panama Refining Co. v. Ryan, 293 U.S. 388 , 421 (1935).

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

293 U.S. at 430, 418, respectively. Similarly, the executive order exercising the authority contained no finding or other explanation by which the legality of the action could be tested. Id. at 431-33.

295 U.S. at 542.

295 U.S. at 541. Other concerns were that the industrial codes were backed by criminal sanction, and that regulatory power was delegated to private individuals. See Mistretta v. United States, 488 U.S. 361 , 373 n.7 (1989).

A year later, the Court invalidated the Bituminous Coal Conservation Act on delegation grounds, but that delegation was to private entities. Carter v. Carter Coal Co., 298 U.S. 238 (1936).

Mistretta v. United States, 488 U.S. 361 , 373 (1989).

Lichter v. United States, 334 U.S. 742 (1948).

American Power & Light Co. v. SEC, 329 U.S. 90 (1946).

Yakus v. United States, 321 U.S. 414 (1944).

FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944).

National Broadcasting Co. v. United States, 319 U.S. 190 (1943).

Hampton v. Mow Sun Wong, 426 U.S. 88 , 122 (1976) (Justice Rehnquist, dissenting).

Mistretta v. United States, 488 U.S. 361 , 373 -79 (1989)

See, e.g., Fahey v. Mallonee, 332 U.S. 245 , 250 (1947) (contrasting the delegation to deal with "unprecedented economic problems of varied industries" with the delegation of authority to deal with problems of the banking industry, where there was "accumulated experience" derived from long regulation and close supervision); Whitman v. American Trucking Ass'ns, 531 U.S. 457 , 474 (2001) (the NIRA "conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring 'fair competition'").

See, e.g., Yakus v. United States, 321 U.S. 414 , 424 -25 (1944) (Schechter involved delegation "not to a public official . . . but to private individuals"; it suffices if Congress has sufficiently marked the field within which an administrator may act "so it may be known whether he has kept within it in compliance with the legislative will.")

See, e.g., Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607 , 645 -46 (1980) (plurality opinion) (invalidating an occupational safety and health regulation, and observing that the statute should not be interpreted to authorize enforcement of a standard that is not based on an "understandable" quantification of risk); National Cable Television Ass'n v. United States, 415 U.S. 336 , 342 (1974) ("hurdles revealed in [Schechter and J. W. Hampton, Jr. & Co. v. United States] lead us to read the Act narrowly to avoid constitutional problems").

E.g., A Symposium on Administrative Law: Part I - Delegation of Powers to Administrative Agencies, 36 AMER. U. L. REV. 295 (1987); Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223 (1985); Aranson, Gellhorn & Robinson, A Theory of Legislative Delegation, 68 CORN. L. REV. 1 (1982).

American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 , 543 (1981) (Chief Justice Burger dissenting); Industrial Union Dep't v. American Petroleum Inst., 448 U.S. 607 , 671 (1980) (then-Justice Rehnquist concurring). See also United States v. Midwest Video Corp., 406 U.S. 649 , 675 , 677 (1972) (Chief Justice Burger concurring, Justice Douglas dissenting); Arizona v. California, 373 U.S. 546 , 625 -26 (1963) (Justice Harlan dissenting in part). Occasionally, statutes are narrowly construed, purportedly to avoid constitutional problems with delegations. E.g., Industrial Union Dep't, 448 U.S. at 645-46 (plurality opinion); National Cable Television Ass'n v. United States, 415 U.S. 336 , 342 (1974).

E.g., Mistretta v. United States, 488 U.S. 361 , 371 -79 (1989). See also Skinner v. Mid-America Pipeline Co., 490 U.S. 212 , 220 -24 (1989); Touby v. United States, 500 U.S. 160 , 164 -68 (1991); Whitman v. American Trucking Ass'ns, 531 U.S. 547 (2001). While expressing considerable reservations about the scope of delegations, Justice Scalia, in Mistretta, 488 U.S. at 415-16, conceded both the inevitability of delegations and the inability of the courts to police them.

Field v. Clark, 143 U.S. 649 , 692 (1892); Wayman v. Southard, 23 U.S. (10 Wheat.) 1 , 42 (1825).

276 U.S. 39 4, 405 -06 (1928).

Chief Justice Taft traced the separation of powers doctrine to the maxim delegata potestas non potest delegari (a delegated power may not be delegated), 276 U.S. at 405, but the maxim does not help differentiate between permissible and impermissible delegations, and Court has not repeated this reference in later delegation cases.

517 U.S. 748 (1996).

517 U.S. at 758-59.

Carter v. Carter Coal Co., 298 U.S. 238 , 310 -12 (1936); Yakus v. United States, 321 U.S. 414 , 424 -25 (1944). Since the separation-of-powers doctrine is inapplicable to the States as a requirement of federal constitutional law, Dreyer v. Illinois, 187 U.S. 71 , 83 -84 (1902), it is the due process clause to which federal courts must look for authority to review delegations by state legislatures. See, e.g., Eubank v. City of Richmond, 226 U.S. 137 (1912); Embree v. Kansas City Road Dist., 240 U.S. 242 (1916).

23 U.S. (10 Wheat.) 1, 41 (1825).

The Brig Aurora, 11 U.S. (7 Cr.) 382 (1813).

23 U.S. (10 Wheat.) 1 (1825).

Act of May 8, 1792, § 2, 1 Stat. 275, 276.

The power to promulgate rules of civil procedure was conferred by the Act of June 19, 1934, 48 Stat. 1064; the power to promulgate rules of criminal procedure was conferred by the Act of June 29, 1940, 54 Stat. 688. These authorities are now subsumed under 28 U.S.C. § 2072. In both instances Congress provided for submission of the rules to it, presumably reserving the power to change or to veto the rules. Additionally, Congress has occasionally legislated rules itself. See, e.g., 82 Stat. 197 (1968), 18 U.S.C. §§ 3501-02 (admissibility of confessions in federal courts).

In re Kollock, 165 U.S. 526 (1897).

165 U.S. at 533.

United States v. Bailey, 34 U.S. (9 Pet.) 238 (1835); Caha v. United States, 152 U.S. 211 (1894).

Buttfield v. Stranahan, 192 U.S. 470 (1904). See also United States v. Grimaud, 220 U.S. 506 (1911) (upholding act authorizing executive officials to make rules governing use of forest reservations); ICC v. Goodrich Transit Co., 224 U.S. 194 (1912) (upholding delegation to prescribe methods of accounting for carriers in interstate commerce).

11 U.S. (7 Cr.) 382 (1813).

11 U.S. (7 Cr.) at 388.

143 U.S. 649 (1892).

143 U.S. at 691.

143 U.S. at 692, 693.

J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).

Arizona v. California, 373 U.S. 546 , 626 (1963) (Justice Harlan, dissenting).

293 U.S. 388 (1935).

The Court, in the view of many observers, was influenced heavily by the fact that the President's orders were nowhere published and notice of regulations bearing criminal penalties for their violations was spotty at best. Cf. E. CORWIN, THE PRESIDENT-OFFICE AND POWERS 1787-1957 394-95 (4th ed. 1958). The result of the Government's discomfiture in Court was enactment of the Federal Register Act, 49 Stat. 500 (1935), 44 U.S.C. § 301, providing for publication of Executive Orders and agency regulations in the daily Federal Register.

295 U.S. 495 (1935).

48 Stat. 195 (1933), Tit. I, § 1.

295 U.S. at 541-542. A delegation of narrower scope led to a different result in Fahey v. Mallonee, 332 U.S. 245 , 250 (1947), the Court finding explicit standards unnecessary because "[t]he provisions are regulatory" and deal with but one enterprise, banking, the problems of which are well known and the authorized remedies as equally well known. "A discretion to make regulations to guide supervisory action in such matters may be constitutionally permissible while it might not be allowable to authorize creation of new crimes in uncharted fields." The Court has recently explained that "the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred." Whitman v. American Trucking Ass'ns, 531 U.S. 457 , 475 (2001) (Congress need not provide "any direction" to EPA in defining "country elevators," but "must provide substantial guidance on setting air standards that affect the entire national economy").

307 U.S. 533 (1939).

307 U.S. at 575. Other guidance in the marketing law limited the terms of implementing orders and specified the covered commodities.

Yakus v. United States, 321 U.S. 414 (1944) (the principal purpose was to control wartime inflation, and the administrator was directed to give "due consideration" to a specified pre-war base period).

Tagg Bros. & Moorhead v. United States, 280 U.S. 420 (1930).

New York Central Securities Corp. v. United States, 287 U.S. 12 (1932).

Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 (1933).

FTC v. Gratz, 253 U.S. 421 (1920).

Whitman v. American Trucking Ass'ns, 531 U.S. 547 (2001).

319 U.S. 190 (1943).

319 U.S. at 216.

Similarly, the promulgation by the FCC of rules creating a "fairness doctrine" and a "right to reply" rule has been sustained, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), as well as a rule requiring the carrying of anti-smoking commercials. Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968), cert. denied sub nom. Tobacco Institute v. FCC, 396 U.S. 842 (1969).

Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F. Supp. 737 (D.D.C. 1971). The three-judge court relied principally on Yakus.

Fahey v. Mallonee, 332 U.S. 245 , 250 (1947) (the Court explained that both the problems of the banking industry and the authorized remedies were well known).

334 U.S. 742 (1948).

In upholding the delegation as applied to the pre-incorporation administrative definition, the Court explained that "[t]he statutory term 'excessive profits,' in its context, was a sufficient expression of legislative policy and standards to render it constitutional." 334 U.S. at 783. The "excessive profits" standard, prior to definition, was contained in Tit. 8 of the Act of October 21, 1942, 56 Stat. 798, 982. The administrative definition was added by Tit. 7 of the Act of February 25, 1944, 58 Stat. 21, 78.

531 U.S. 547 (2001).

531 U.S. at 472.

Id.

Whitman v. American Trucking Ass'ns, 531 U.S. 457 , 475 (2001).

Whitman, 531 U.S. at 475-76.

488 U.S. 361 (1989).

488 U.S. at 378.

E.g., Permian Basin Area Rate Cases, 390 U.S. 747 (1968); American Trucking Ass'ns v. Atchison, Topeka & Santa Fe Ry., 387 U.S. 397 (1967).

Chevron, U.S.A. v. NRDC, 467 U.S. 837 , 842 -45, 865-66 (1984) ("[A]n agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments." Id. at 865). See also Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29 , 42 - 44, 46-48, 51-57 (1983) (recognizing agency could have reversed its policy but finding reasons not supported on record).

Yakus v. United States, 321 U.S. 414 , 425 (1944).

Yakus v. United States, 321 U.S. 414 , 426 ; Skinner v. Mid-America Pipeline Co., 490 U.S. 212 , 218 (1989); American Light & Power Co. v. SEC, 329 U.S. 90 , 107 , 108 (1946); Opp Cotton Mills v. Administrator, 312 U.S. 126 , 144 (1941). It should be remembered that the Court has renounced strict review of economic regulation wholly through legislative enactment, forsaking substantive due process, so that review of the exercise of delegated power by the same relaxed standard forwards a consistent policy. E.g., Ferguson v. Skrupa, 372 U.S. 726 (1963); Williamson v. Lee Optical Co., 348 U.S. 483 (1955).

Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. §§ 551-559. In NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969), six Justices agreed that a Board proceeding had been in fact rule-making and not adjudication and that the APA should have been complied with. The Board won the particular case, however, because of a coalescence of divergent views of the Justices, but the Board has since reversed a policy of not resorting to formal rule-making.

E.g., Goldberg v. Kelly, 397 U.S. 254 (1970); Wisconsin v. Constantineau, 400 U.S. 433 (1971).

City of New York v. FCC, 486 U.S. 57 , 63 -64 (1988); Louisiana PSC v. FCC, 476 U.S. 355 , 368 -69 (1986); Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141 , 153 -54 (1982).

E.g., The Brig Aurora, 11 U.S. (7 Cr.) 382 (1813).

E.g., J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892).

312 U.S. 126 (1941).

See 28 U.S.C. § 2072. In Davis v. United States, 411 U.S. 233 , 241 (1973), the Court referred in passing to the supersession of statutes without evincing any doubts about the validity of the results. When Congress amended the Rules Enabling Acts in the 100th Congress, P.L. 100-702, 102 Stat. 4642, 4648, amending 28 U.S.C. § 2072, the House would have altered supersession, but the Senate disagreed, the House acquiesced, and the old provision remained. See H.R. 4807, H. Rep. No. 100-889, 100th Cong., 2d sess. (1988), 27-29; 134 CONG REC. 23573-84 (1988), id. at 31051-52 (Sen. Heflin); id. at 31872 (Rep. Kastenmeier).

299 U.S. 30 4, 319 -29 (1936).

299 U.S. at 319-22. For a particularly strong, recent assertion of the point, see Haig v. Agee, 453 U.S. 280 , 291 -92 (1981). This view also informs the Court's analysis in Dames & Moore v. Regan, 453 U.S. 654 (1981). See also United States v. Chemical Foundation, 272 U.S. 1 (1926) (Trading With Enemy Act delegation to dispose of seized enemy property).

Loving v. United States, 517 U.S. 748 , 772 -73 (1996).

299 U.S. at 319.

517 U.S. 748 (1996).

10 U.S.C. §§ 918(1), (4).

The Court assumed the applicability of Furman v. Georgia, 408 U.S. 238 (1972), and its progeny, to the military, 517 U.S. at 755-56, a point on which Justice Thomas disagreed, id. at 777.

Rule for Courts-Martial; see 517 U.S. at 754.

10 U.S.C. §§ 818, 836(a), 856.

517 U.S. at 771-74. See also United States v. Mazurie, 419 U.S. 544 , 556 - 57 (1974) (limits on delegation are "less stringent" when delegation is made to an Indian tribe that can exercise independent sovereign authority over the subject matter).

See Warren, Federal Criminal Laws and the State Courts, 38 HARV. L. REV. 545 (1925); Holcomb, The States as Agents of the Nation, 3 SELECTED ESSAYS ON CONSTITUTIONAL LAW 1187 (1938).

Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842) (duty to deliver fugitive slave); Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861) (holding that Congress could not compel a Governor to extradite a fugitive). Doubts over Congress's power to compel extradition were not definitively removed until Puerto Rico v. Branstad, 483 U.S. 219 (1987), in which the Court overruled Dennison.

245 U.S. 36 6, 389 (1918).

E.g., P.L. 94-435, title III, 90 Stat. 1394, 15 U.S.C. § 15c (state attorneys general may bring antitrust parens patriae actions); Medical Waste Tracking Act, P.L. 100-582, 102 Stat. 2955, 42 U.S.C. § 6992f (States may impose civil and possibly criminal penalties against violators of the law).

See 24 Weekly Comp. of Pres. Docs. 1418 (1988) (President Reagan). The only judicial challenge to such a practice resulted in a rebuff to the presidential argument. Seattle Master Builders Ass'n v. Pacific N.W. Elec. Power Council, 786 F.2d 1359 (9th Cir. 1986), cert. denied, 479 U.S. 1059 (1987).

Currin v. Wallace, 306 U.S. 1 (1939); United States v. Rock Royal Cooperative, 307 U.S. 533 , 577 (1939); Wickard v. Filburn, 317 U.S. 111 , 115 - 116 (1942); United States v. Frame, 885 F.2d 1119 (3d Cir. 1989), cert. den., 493 U.S. 1094 (1990).

Currin v. Wallace, 306 U.S. 1 , 15 , 16 (1939).

St. Louis, Iron Mt. & So. Ry. v. Taylor, 210 U.S. 281 (1908).

192 U.S. 470 (1904).

210 U.S. at 287.

Jackson v. Roby, 109 U.S. 440 (1883); Erhardt v. Boaro, 113 U.S. 527 (1885); Butte City Water Co. v. Baker, 196 U.S. 119 (1905).

A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 , 537 (1935). In two subsequent cases, the Court referred to Schechter as having struck down a delegation for its lack of standards. Mistretta v. United States, 488 U.S. 361 , 373 n.7 (1989); Whitman v. American Trucking Ass'ns, 531 U. S. 457 , 474 (2001).

298 U.S. 238 (1936). But compare Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940) (upholding a delegation in the Bituminous Coal Act of 1937).

"One person may not be entrusted with the power to regulate the business of another, and especially of a competitor." 298 U.S. at 311.

See, e.g., Schweiker v. McClure, 456 U.S. 188 (1992) (adjudication of Medicare claims, without right of appeal, by hearing officer appointed by private insurance carrier upheld under due process challenge); Association of Amer. Physicians & Surgeons v. Weinberger, 395 F. Supp. 125 (N.D. Ill.) (three-judge court) (delegation to Professional Standards Review Organization), aff'd per curiam, 423 U.S. 975 (1975); Noblecraft Industries v. Secretary of Labor, 614 F.2d 199 (9th Cir. 1980) (Secretary authorized to adopt interim OSHA standards produced by private organization). Executive Branch objections to these kinds of delegations have involved appointments clause arguments rather than delegation issues per se.

The Act conferred authority on the President to approve the codes of competition, either as proposed by the appropriate trade group, or with conditions that he added. Thus the principal delegation was to the President, with the private trade groups being delegated only recommendatory authority. 295 U.S. at 538-39.

295 U.S. at 539.

See, e.g., Yakus v. United States, 321 U.S. 414 , 424 -25 (1944).

Lichter v. United States, 334 U.S. 742 , 778 -79 (1948).

490 U.S. 21 2, 223 (1989). In National Cable Television Ass'n v. United States, 415 U.S. 336 , 342 (1974), and FPC v. New England Power Co., 415 U. S. 345 (1974), the Court had appeared to suggest that delegation of the taxing power would be fraught with constitutional difficulties. How this conclusion could have been thought viable after the many cases sustaining delegations to fix tariff rates, which are in fact and law taxes, J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field v. Clark, 143 U.S. 649 (1892); and see FEA v. Algonquin SNG, Inc., 426 U.S. 548 (1976) (delegation to President to raise license "fees" on imports when necessary to protect national security), is difficult to discern. Nor should doubt exist respecting the appropriations power. See Synar v. United States, 626 F. Supp. 1374, 1385-86 (D.D.C.) (three- judge court), aff'd on other grounds sub nom. Bowsher v. Synar, 478 U.S. 714 (1986).

490 U.S. at 221. Nor is there basis for distinguishing the other powers enumerated in § 8. See, e.g., Loving v. United States, 517 U.S. 748 (1996). But see Touby v. United States, 500 U.S. 160 , 166 (1991) (it is "unclear" whether a higher standard applies to delegations of authority to issue regulations that contemplate criminal sanctions), discussed in the next section.

Touby v. United States, 500 U.S. 160 , 166 (1991).

Tiffany v. National Bank of Missouri, 85 U.S. (18 Wall.) 409 , 410 (1873).

A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

Fahey v. Mallonee, 332 U.S. 245 , 249 (1947).

L. P. Steuart & Bro. v. Bowles, 322 U.S. 398 , 404 (1944) ("[I]t is for Congress to prescribe the penalties for the laws which it writes. It would transcend both the judicial and the administrative function to make additions to those which Congress has placed behind a statute").

United States v. Grimaud, 220 U.S. 506 (1911). The Forest Reserve Act at issue in Grimaud clearly provided for punishment for violation of "rules and regulations of the Secretary." The Court in Grimaud distinguished United States v. Eaton, 144 U.S. 677 (1892), which had held that authority to punish for violation of a regulation was lacking in more general language authorizing punishment for failure to do what was "required by law." 220 U.S. at 519. Extension of the principle that penal statutes should be strictly construed requires that the prohibited acts be clearly identified in the regulation. M. Kraus & Bros. v. United States, 327 U.S. 614 , 621 (1946). The Court summarized these cases in Loving v. United States, 517 U.S. 748 (1996), drawing the conclusion that "there is no absolute rule . . . against Congress' delegation of authority to define criminal punishments."

Touby v. United States, 500 U.S. 160 (1991).

Mistretta v. United States, 488 U.S. 361 (1989)

488 U.S. at 377-78. "As for every other offense within the Commission's jurisdiction, the Commission could include the death penalty within the guidelines only if that punishment was authorized in the first instance by Congress and only if such inclusion comported with the substantial guidance Congress gave the Commission in fulfilling its assignments." Id. at 378 n.11.

United States v. Robel, 389 U.S. 258 , 269 (1967) (Justice Brennan concurring). The view was specifically rejected by Justices White and Harlan in dissent, id. at 288-289, and ignored by the majority.

Kent v. Dulles, 357 U.S. 116 , 129 (1958).

Kent v. Dulles, 357 U.S. 116 (1958); Schneider v. Smith, 390 U.S. 17 (1968); Greene v. McElroy, 360 U.S. 474 , 506 -08 (1959) (Court will not follow traditional principles of congressional acquiescence in administrative interpretation to infer a delegation of authority to impose an industrial security clearance program that lacks the safeguards of due process). More recently, the Court has eschewed even this limited mode of construction. Haig v. Agee, 453 U. S. 280 (1981).

Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (5-to-4 decision). The regulation was reissued by the President, E. O. 11935, 3 C.F.R. 146 (1976), reprinted in 5 U.S.C. § 3301 (app.), and sustained in Vergara v. Hampton, 581 F. 2d 1281 (7th Cir. 1978).

Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 HARV. L. REV. 153, 159-166 (1926); M. DIMOCK, CONGRESSIONAL INVESTIGATING COMMITTEES ch. 2 (1929).

3 ANNALS OF CONGRESS 490-494 (1792); 3 A. HINDS' PRECEDENTS OF THE HOUSE OF REPRESENTATIVES 1725 (1907).

McGrain v. Daugherty, 273 U.S. 135 , 174 -175 (1927).

Watkins v. United States, 354 U.S. 178 , 187 (1957).

Barenblatt v. United States, 360 U.S. 109 , 111 (1959). See also Eastland v. United States Servicemen's Fund, 421 U.S. 491 , 503 -507 (1975).

Kilbourn v. Thompson, 103 U.S. 168 , 189 (1881).

McGrain v. Daugherty, 273 U.S. 135 , 170 (1927). The internal quotations are from Kilbourn v. Thompson, 103 U.S. 168 , 190 , 193 (1881).

In 1800, Secretary of the Treasury, Oliver Wolcott, Jr., addressed a letter to the House of Representatives advising them of his resignation from office and inviting an investigation of his office. Such an inquiry was made. 10 ANNALS OF CONGRESS 786-788 (1800).

8 CONG. DEB. 2160 (1832).

13 CONG. DEB. 1057-1067 (1836).

H. R. Rep. No. 194, 24th Congress, 2d sess., 1, 12, 31 (1837).

CONG. GLOBE, 36th Congress, 1st sess., 1100-1109 (1860).

103 U.S. 168 (1881).

The Court held that inasmuch as the entire proceedings arising out of the bankruptcy were pending in court, as the authorizing resolution contained no suggestion of contemplated legislation, as in fact no valid legislation could be enacted on the subject, and as the only relief which the United States could seek was judicial relief in the bankruptcy proceeding, the House had exceeded its powers in authorizing the inquiry. But see Hutcheson v. United States, 369 U.S. 599 (1962).

273 U.S. 13 5, 177 , 178 (1927).

We consider elsewhere the topic of executive privilege, the claimed right of the President and at least some of his executive branch officers to withhold from Congress information desired by it or by one of its committees. Although the issue has been one of contention between the two branches of Government since Washing-ton's refusal in 1796 to submit certain correspondence to the House of Representatives relating to treaty negotiations, it has only recently become a judicial issue.

In re Chapman, 166 U.S. 661 (1897).

279 U.S. 597 (1929).

4 CONG. DEB. 862, 868, 888, 889 (1827).

Kilbourn v. Thompson, 103 U.S. 168 (1881).

In re Chapman, 166 U.S. 661 , 670 (1897).

273 U.S. 13 5, 178 (1927).

279 U.S. 263 (1929).

279 U.S. at 295.

279 U.S. at 294.

The first case so holding is ICC v. Brimson, 154 U.S. 447 (1894), which asserts that inasmuch as Congress could itself have made the inquiry to appraise its regulatory activities it could delegate the power of inquiry to the agency to which it had delegated the regulatory function.

Watkins v. United States, 354 U.S. 178 , 195 (1957).

See Dennis v. United States, 341 U.S. 494 (1951); Barenblatt v. United States, 360 U.S. 109 , 127 (1959); American Communications Ass'n v. Douds, 339 U.S. 382 (1950).

Barenblatt v. United States, 360 U.S. 109 , 129 -132 (1959); Deutch v. United States, 367 U.S. 456 (1961); cf. Sweezy v. New Hampshire, 354 U.S. 234 (1957) (state inquiry).

Watkins v. United States, 354 U.S. 178 (1957); Flaxer v. United States, 358 U.S. 147 (1958); Wilkinson v. United States, 365 U.S. 399 (1961).

McPhaul v. United States, 364 U.S. 372 (1960).

Hutcheson v. United States, 369 U.S. 599 (1962).

Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024 (1969).

Watkins v. United States, 354 U.S. 178 , 200 (1957). The Chief Justice, however, noted: "We are not concerned with the power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. That was the only kind of activity described by Woodrow Wilson in Congressional Government when he wrote: 'The informing function of Congress should be preferred even to its legislative function.' Id. at 303. From the earliest times in its history, the Congress has assiduously performed an 'informing function' of this nature." Id. at 200 n. 33.

Barenblatt v. United States, 360 U.S. 109 , 153 -162, 166 (1959); Wilkinson v. United States, 365 U.S. 399 , 415 , 423 (1961); Braden v. United States, 365 U.S. 431 , 446 (1961); but see DeGregory v. Attorney General, 383 U.S. 825 (1966) (a state investigative case).

"Legislative committees have been charged with losing sight of their duty of disinterestedness. In times of political passion, dishonest or vindicative motives are readily attributable to legislative conduct and as readily believed. Courts are not the place for such controversies." Tenney v. Brandhove, 341 U. S. 367 , 377 -378 (1951). For a statement of the traditional unwillingness to inquire into congressional motives in the judging of legislation, see United States v. O'Brien, 391 U.S. 367 , 382 - 386 (1968). But note that in Jenkins v. McKeithen, 395 U.S. 411 (1969), in which the legislation establishing a state crime investigating commission clearly authorized the commission to designate individuals as law violators, due process was violated by denying witnesses the rights existing in adversary criminal proceedings.

Barenblatt v. United States, 360 U.S. 109 , 132 (1959).

United States v. Rumely, 345 U.S. 41 , 44 (1953).

354 U.S. 17 8, 201 (1957).

The Committee has since been abolished.

Watkins v. United States, 354 U.S. 178 , 202 (1957).

360 U.S. 109 (1959).

360 U.S. at 117-18.

360 U.S. at 122-23. But note that in Stamler v. Willis, 415 F. 2d 1365 (7th Cir. 1969), cert. denied, 399 U.S. 929 (1970), the court ordered to trial a civil suit contesting the constitutionality of the Rule establishing the Committee on allegations of overbreadth and overbroad application, holding that Barenblatt did not fore-close the contention.

But see Tobin v. United States, 306 F. 2d 270 (D.C. Cir. 1962), cert. denied, 371 U.S. 902 (1962).

345 U.S. 41 (1953).

The Court intimated that if the authorizing resolution did confer such power upon the committee, the validity of the resolution would be subject to doubt on First Amendment principles. Justices Black and Douglas would have construed the resolution as granting the authority and would have voided it under the First Amendment. 345 U.S. at 48 (concurring opinion).

384 U.S. 702 (1966).

354 U.S. 178 (1957).

354 U.S. at 208-09.

354 U.S. at 209-15.

Id. See also Sacher v. United States, 356 U.S. 576 (1958), a per curiam reversal of a contempt conviction on the ground that the questions did not relate to a subject "within the subcommittee's scope of inquiry," arising out of a hearing pertaining to a recantation of testimony by a witness in which the inquiry drifted into a discussion of legislation barring Communists from practice at the federal bar, the unanswered questions being asked then; and Flaxer v. United States, 358 U.S. 147 (1958), a reversal for refusal to produce membership lists because of an ambiguity in the committee's ruling on the time of performance; and Scull v. Virginia ex rel. Committee, 359 U.S. 344 (1959), a reversal on a contempt citation before a state legislative investigating committee on pertinency grounds.

Notice should be taken, however, of two cases which, though decided four and five years after Watkins, involved persons who were witnesses before the Un-American Activities Committee either shortly prior to or shortly following Watkins' appearance and who were cited for contempt before the Supreme Court decided Watkins' case.

360 U.S. 109 (1959).

365 U.S. 399 (1961).

Braden v. United States, 365 U.S. 431 (1961).

The majority denied that the witness' participation in a lawful and protected course of action, such as petitioning Congress to abolish the Committee, limited the Committee's right of inquiry. "[W]e cannot say that, simply because the petitioner at the moment may have been engaged in lawful conduct, his Communist activities in connection therewith could not be investigated. The subcommittee had reasonable ground to suppose that the petitioner was an active Communist Party member, and that as such he possessed information that would substantially aid it in its legislative investigation. As the Barenblatt opinion makes clear, it is the nature of the Communist activity involved, whether the momentary conduct is legitimate or illegitimate politically, that establishes the Government's overbalancing interest." Wilkinson v. United States, 365 U.S. 399 , 414 (1961). In both cases, the dissenters, Chief Justice Warren and Justices Black, Douglas, and Brennan argued that the Committee action was invalid because it was intended to harass persons who had publicly criticized committee activities. Id. at 415, 423, 429.

374 U.S. 109 (1963).

Failure to follow its own rules was again an issue in Gojack v. United States, 384 U.S. 702 (1966), in which the Court noted that while a committee rule required the approval of a majority of the Committee before a "major" investigation was initiated, such approval had not been sought before a Subcommittee proceeded.

In Christoffel v. United States, 338 U.S. 84 (1949), the Court held that a witness can be found guilty of perjury only where a quorum of the committee is present at the time the perjury is committed; it is not enough to prove that a quorum was present when the hearing began. But in United States v. Bryan, 339 U.S. 323 (1950), the Court ruled that a quorum was not required under the statute punishing refusal to honor a valid subpoena issued by an authorized committee.

Barenblatt v. United States, 360 U.S. 109 , 112 (1959).

360 U.S. at 126; Watkins v. United States, 354 U.S. 178 , 196 (1957); Quinn v. United States, 349 U.S. 155 , 161 (1955).

Quinn v. United States, 349 U.S. 155 (1955).

Emspak v. United States, 349 U.S. 190 (1955).

Bart v. United States, 349 U.S. 219 (1955).

McPhaul v. United States, 364 U.S. 372 (1960).

369 U.S. 599 (1962).

Justice Harlan wrote the opinion of the Court which Justices Clark and Stewart joined. Justice Brennan concurred solely because the witness had not claimed the privilege against self-incrimination but he would have voted to reverse the conviction had there been a claim. Chief Justice Warren and Justice Douglas dissented on due process grounds. Justices Black, Frankfurter, and White did not participate. At the time of the decision, the self-incrimination clause did not restrain the States through the Fourteenth Amendment so that it was no violation of the clause for either the Federal Government or the States to compel testimony which would incriminate the witness in the other jurisdiction. Cf. United States v. Murdock, 284 U.S. 141 (1931); Knapp v. Schweitzer, 357 U.S. 371 (1958). The Court has since reversed itself, Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964), thus leaving the vitality of Hutcheson doubtful.

The matter is discussed fully in the section on the First Amendment but a good statement of the balancing rule may be found in Younger v. Harris, 401 U. S. 37 , 51 (1971), by Justice Black, supposedly an absolutist on the subject: "Where a statute does not directly abridge free speech, but-while regulating a subject within the State's power-tends to have the incidental effect of inhibiting First Amendment rights, it is well settled that the statute can be upheld if the effect on speech is minor in relation to the need for control of the conduct and the lack of alternative means for doing so."

Barenblatt v. United States, 360 U.S. 109 , 126 (1959).

Barenblatt v. United States, 360 U.S. 109 (1959).

Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States, 365 U.S. 431 (1961).

United States v. Rumely, 345 U.S. 41 (1953).

Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963). See also DeGregory v. Attorney General, 383 U.S. 825 (1966).

Watkins v. United States, 354 U.S. 178 , 188 (1957).

See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), and cases cited.

Cf. McPhaul v. United States, 364 U.S. 372 (1960).

273 U.S. 135 (1927).

19 U.S. (6 Wheat.) 204 (1821).

The contempt consisted of an alleged attempt to bribe a Member of the House for his assistance in passing a claims bill. The case was a civil suit brought by Anderson against the Sergeant at Arms of the House for assault and battery and false imprisonment. Cf. Kilbourn v. Thompson, 103 U.S. 168 (1881). The power of a legislative body to punish for contempt one who disrupts legislative business was reaffirmed in Groppi v. Leslie, 404 U.S. 496 (1972), but a unanimous Court there held that due process required a legislative body to give a contemnor notice and an opportunity to be heard prior to conviction and sentencing. Although this case dealt with a state legislature, there is no question it would apply to Congress as well.

243 U.S. 521 (1917).

243 U.S. at 542.

294 U.S. 125 (1935).

294 U.S. at 150.

19 U.S. (6 Wheat.) 204 (1821).

Act of January 24, 1857, 11 Stat. 155. With only minor modification, this statute is now 2 U.S.C. § 192.

In re Chapman, 166 U.S. 661 , 671 -672 (1897).

Sinclair v. United States, 279 U.S. 263 , 296 -297 (1929); Watkins v. United States, 354 U.S. 178 , 207 (1957); Sacher v. United States, 356 U.S. 576 , 577 (1958); Flaxer v. United States, 358 U.S. 147 , 151 (1958); Deutch v. United States, 367 U.S. 456 , 471 (1961); Russell v. United States, 369 U.S. 749 , 755 (1962). Protesting the Court's reversal of several contempt convictions over a period of years, Justice Clark was moved to suggest that "[t]his continued frustration of the Congress in the use of the judicial process to punish those who are contemptuous of its committees indicates to me that the time may have come for Congress to revert to 'its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House [affected].'" Id. at 781; Watkins, 354 U.S. at 225.

Cf. Groppi v. Leslie, 404 U.S. 496 (1972).

Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975).


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