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The Constitution United States of America

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The Constitution United States of America ThisThis publicationpublication supplementssupplements SenateSenate DocumentDocument 115–8,112–9, TheThe ConstitutionConstitution of the UnitedUnited StatesStates ofof America:America: Analysis Analysis andand InterpretationInterpretation—it­­­­––it shouldshould bebe insertedinserted intointo thethe pocketpocket onon thethe insideinside backback covercover ofof thatthat volumevolume 115th116th Congress DOCUMENT SENATE 2nd2d Session Session No.No. 116–20 115–8 " ! THE CONSTITUTION OF THE UNITED STATES OF AMERICA ANALYSIS AND INTERPRETATION 20202018 SUPPLEMENTSUPPLEMENT ANALYSISANALYSIS OFOF CASESCASES DECIDEDDECIDED BYBY THE SUPREME COURTCOURT OFOF THETHE UNITED STATES TO JUNEJULY 14,28, 20202018 PREPARED BY BY THE THE CCONGRESSIONALONGRESSIONAL RRESEARCHESEARCH SSERVICEERVICE LIBRARY OF OF CCONGRESSONGRESS VALERIE BBRANNONRANNON CAITLAINVICTORIADEVEREAUX KILLIONLEWIS ANDREW NNOLANOLAN ATTORNEY EEDITORSDITORS GEORGIA GKOULGKOUNTINA SMUMMEREGHAN NORWOODTOTTEN MLEGHANEGAL E TDITORSOTTEN LEGAL EDITORS U.S.U.S. GOVERNMENTGOVERNMENT PUBLISHINGPUBLISHING OFFICE 31–34442-432 WASHINGTONWASHINGTON : : 20202018 Online Version: Online www.gpo.gov/constitutionannotated; Version: www.gpo.gov/constitutionannotated www.constitution.congress.gov For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402–0001 ISBNISBN 978-0-16-095800-7978-0-16-094937-1 TABLE OF CONTENTS TABLE OF CONTENTS .......................................................................................... 3 ARTICLE I ................................................................................................................ 5 ARTICLE II .............................................................................................................32 ARTICLE III ...........................................................................................................50 ARTICLE IV ............................................................................................................82 ARTICLE VI ............................................................................................................86 FIRST AMENDMENT ...........................................................................................93 SECOND AMENDMENT ................................................................................... 127 FOURTH AMENDMENT ................................................................................... 129 FIFTH AMENDMENT ....................................................................................... 144 SIXTH AMENDMENT ........................................................................................ 158 SEVENTH AMENDMENT ................................................................................. 171 EIGHTH AMENDMENT .................................................................................... 172 TENTH AMENDMENT ...................................................................................... 183 ELEVENTH AMENDMENT .............................................................................. 185 TWELFTH AMENDMENT ................................................................................ 188 FOURTEENTH AMENDMENT........................................................................ 189 FIFTEENTH AMENDMENT ............................................................................ 222 TWENTY-FIRST AMENDMENT ..................................................................... 227 ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN WHOLE OR IN PART BY THE SUPREME COURT OF THE UNITED STATES .............. 231 STATE CONSTITUTIONAL AND STATUTORY PROVISIONS AND MUNICIPAL ORDINANCES HELD UNCONSTITUTIONAL OR HELD TO BE PREEMPTED BY FEDERAL LAW ........................................................... 236 SUPREME COURT DECISIONS OVERRULED BY SUBSEQUENT DECISION ............................................................................................................ 242 TABLE OF CASES .............................................................................................. 244 ARTICLE I TABLE OF CONTENTS [P. 58, in subheading “Clause 1,” following heading “Section 4. Elections,” delete “Congressional Power to Regulate” and substitute with:] Times, Places, and Manner of Elections Section 1. The Congress DELEGATION OF LEGISLATIVE POWER The History of the Doctrine of Nondelegability [P. 79, delete paragraph starting “Concerns in the scholarly literature . ” through “ . most sweeping nature.” and substitute with:] In more recent years, however, the modern application of the J. W. Hampton Court’s intelligible principle test and the broad deference it affords congressional delegations of authority to the other branches has met with growing skepticism from some members of the Court.1 The 2019 case of Gundy v. United States highlighted an emerging split on the High Court with respect its nondelegation doctrine jurisprudence.2 In that case, a criminal defendant challenged a provision of the Sex Offender Registration and Notification Act (SORNA) allowing the Attorney General to (1) “specify the applicability” of SORNA’s registration requirements to individuals convicted of a sex offense prior to the statute’s enactment and (2) “prescribe rules for [their] registration” in jurisdictions where the offender resides, works, or is a student.3 Writing for a four-Justice plurality, Justice Kagan interpreted this provision as limiting the Attorney General’s authority to “require pre-Act offenders to register as soon as feasible,”4 concluding that the delegation “easily passe[d] constitutional muster.”5 For the plurality, the Attorney General’s 1 See, e.g., Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. ___, No. 13-1080, slip op. at 12 (2015) (Thomas, J., concurring) (arguing that the Court should “return to the original understanding of the federal legislative power” and reject the “boundless standard the ‘intelligible principle’ test has become”); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1154 (10th Cir. 2016) (Gorsuch, J., concurring) (noting “thoughtful” commentary questioning whether the current intelligible principle test serves “as much as a protection against the delegation of legislative authority as a license for it, undermining the separation between the legislative and executive powers that the founders thought essential”). 2 See 139 S. Ct. 2116 (2019). While criticisms of the intelligible principle doctrine have become more pronounced in recent years, some former members of the Court had argued for striking down legislation on nondelegation grounds. See, e.g., Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 675 (1980) (Rehn quist, J., concurring); Arizona v. California, 373 U.S. 546, 626-27 (1963) (Harlan, J., dissenting). 3 34 U.S.C. § 20913(d); see also Gundy, 139 S. Ct. at 2122 (plurality opinion) (discussing SORNA’s “basic registration scheme”). 4 See Gundy, 139 S. Ct. at 2129 (plurality opinion). 5 Id. at 2121. 5 ARTICLE I—LEGISLATIVE DEPARTMENT authority under SORNA, when compared to other delegations the Court had previously upheld, was “distinctly small-bore.”6 Notably, Justice Kagan’s opinion was met by a dissent, authored by Justice Gorsuch and joined by Chief Justice Roberts and Justice Thomas, which argued that the statute unconstitutionally provided the Attorney General “unfettered discretion.”7 Further, the dissenters claimed that the modern intelligible principle test has “no basis in the original meaning of the Constitution” or in historical practice.8 In response, the plurality, noting that delegations akin to the one in SORNA are “ubiquitous in the U.S. Code,” argued that as a matter of pragmatism the Court should afford deference to Congress’s judgments that such broad delegations are necessary.9 Providing the fifth vote to affirm the petitioner’s conviction was Justice Alito, who, while agreeing that the plurality correctly applied the modern nondelegation case law, indicated he would “support [the] effort” of the dissenting Justices to reconsider the intelligible principle test once a majority of the Court concurred in rethinking the doctrine.10 Accordingly, Gundy witnessed the Court evenly split on how deferential the Court should be with regard to congressional delegations to the other branches, raising questions as to whether the nondelegation doctrine would remain moribund. CONGRESSIONAL INVESTIGATIONS Scope of the Power to Investigate [P. 97, delete sentence starting “In principle, the Court is . .” and substitute with:] In addition, Congress may not issue a subpoena for the purpose of law enforcement—that is, to “try” someone before a committee for any “crime or wrongdoing,”11 as such an action would intrude on powers “assigned under [the] Constitution to the Executive and the Judiciary.”12 Finally, the Court has recognized that recipients of congressional subpoenas “retain common law and constitutional privileges with respect to certain materials,” such as privileges associated with attorney-client and internal governmental communications.13 6 Id. at 2130. 7 Id. at 2143 (Gorsuch, J., dissenting). 8 Id. at 2139. 9 Id. at 2130 (plurality opinion). 10 Id. at 2121 (Alito, J., concurring). Justice Kavanaugh took no part in the consideration or decision in Gundy, as he was appointed to the Supreme Court after oral argument occurred in the case. 11 McGrain v. Daugherty, 273 U.S. 135, 179 (1927). 12 Quinn v. United States,
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