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The Constitution United States of America

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The Constitution United States of America 1 This publication supplements Senate Document 103–6, The Constitution of the United States of America: Analysis and Interpretation—it should be inserted in the pocket on the inside back cover of that volume 106TH CONGRESS DOCUMENT " SENATE ! 2d Session No. 106–27 THE CONSTITUTION OF THE UNITED STATES OF AMERICA ANALYSIS AND INTERPRETATION 2000 SUPPLEMENT ANALYSIS OF CASES DECIDED BY THE SUPREME COURT OF THE UNITED STATES TO JUNE 28, 2000 PREPARED BY THE CONGRESSIONAL RESEARCH SERVICE LIBRARY OF CONGRESS JOHNNY H. KILLIAN GEORGE A. COSTELLO KENNETH R. THOMAS EDITORS DAVID M. ACKERMAN HENRY COHEN ROBERT MELTZ CONTRIBUTORS U.S. GOVERNMENT PRINTING OFFICE 69–557 CC WASHINGTON : 2000 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, DC 20402 VerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00001 Fmt 8223 Sfmt 8223 C:\CONSUP98\69557 CRS1 PsN: CRS1 ARTICLE I DELEGATION OF LEGISLATIVE POWER The Effective Demise of the Nondelegation Doctrine [P. 78, add to text following n.79:] The infirm state of the nondelegation doctrine was dem- onstrated further in Loving v. United States.1 Article 118 of the Uniform Code of Military Justice (UCMJ) 2 provides for the death penalty for premeditated murder and felony murder for persons subject to the Act, but the statute does not comport with the Court’s capital punishment jurisprudence, which requires the death sentence to be cabined by standards so that the sentencing author- ity is constrained to narrow the class of convicted persons to be so sentenced and to justify the individual imposition of the sentence.3 However, the President in 1984 had promulgated standards that purported to supply the constitutional validity the UCMJ needed.4 The Court 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 exclu- sive—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.’’ 5 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.6 In the course of the opinion, the Court distinguished between its usual separation-of-powers doctrine—emphasizing arrogation of 1 517 U.S. 748 (1996). The decision was unanimous in result, but there were several concurrences reflecting some differences among the Justices. 2 10 U.S.C. §§918(1), (4). 3 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. 4 Rule for Courts-Martial; see 517 U.S. at 754. 5 10 U.S.C. §§818, 836(a), 856. 6 517 U.S. at 771–74. 1 VerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00002 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1 2 ART. I—LEGISLATIVE DEPARTMENT 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,7 thus confirming what has long been evi- dent that the delegation doctrine is unmoored to separation-of- powers principles altogether. —The Regulatory State [P. 82, add to n.106:] Notice Clinton v. City of New York, 524 U.S. 417 (1998), in which the Court struck down what Congress had intended to be a delegation to the President, find- ing that the authority conferred on the President was legislative power, not execu- tive power, which failed because the Presentment Clause had not and could not have been complied with. The dissenting Justices argued that the law, the Line Item Veto Act, 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). QUALIFICATIONS OF MEMBERS OF CONGRESS Exclusivity of Constitutional Qualifications —Congressional Additions [P. 111, add to n.297:] Powell’s continuing validity was affirmed in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), both by the Court in its holding that the qualifications set out in the Constitution are exclusive and may not be added to by either Congress or the States, id. at 787–98, and by the dissent, which would hold that Congress, for different reasons, could not add to qualifications, although the States could. Id. at 875–76. —State Additions [P. 114, add to text following n.312:] The long-debated issue whether the States could add to the qualifications that the Constitution prescribed for Senators and Representations was finally resolved, by a surprisingly close vote, in U.S. Term Limits, Inc. v. Thornton.8 Arkansas, along with twenty-two other States, all but two by citizen initiatives, had im- posed maximum numbers of terms that Members of Congress could serve. In this case, the Court held that the Constitution’s qualifica- 7 Id. at 758–59. 8 514 U.S. 779 (1995). The majority was composed of Justice Stevens (writing the opinion of the Court) and Justices Kennedy, Souter, Ginsburg, and Breyer. Dis- senting were Justice Thomas (writing the opinion) and Chief Justice Rehnquist and Justices O’Connor and Scalia. Id. at 845. VerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00003 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1 ART. I—LEGISLATIVE DEPARTMENT 3 tions clauses 9 establish exclusive qualifications for Members that may not be added to either by Congress or the States. The four- Justice dissent argued that while Congress had no power to in- crease qualifications, the States did. Richly embellished with disputatious arguments about the text of the Constitution, the history of its drafting and ratification, and the practices of Congress and the States in the early years of the United States, the actual determination of the Court as con- troverted by the dissent was much more over founding principles than more ordinary constitutional interpretation.10 Thus, the Court and the dissent drew different conclusions from the text of the qualifications clauses and the other clauses re- specting the elections of Members of Congress; the Court and the dissent reached different conclusions after a minute examination of the records of the Convention respecting the drafting of these clauses and the ratification debates; and the Court and the dissent were far apart on the meaning of the practices in the States in leg- islating qualifications and election laws and in Congress in decid- ing election contests based on qualifications disputes. A default principle relied on by both Court and dissent, given the arguments drawn from text, creation, and practice, had to do with the fundamental principle underlying the Constitution’s adop- tion. In the dissent’s view, the Constitution was the result of the resolution of the peoples of the separate States to create the Na- tional Government. The conclusion to be drawn from this was that the peoples in the States agreed to surrender powers expressly for- bidden them and to surrender those limited powers that they had delegated to the Federal Government expressly or by necessary im- plication. They retained all other powers and still retained them. Thus, ‘‘where the Constitution is silent about the exercise of a par- ticular power—that is, where the Constitution does not speak ei- ther expressly or by necessary implication—the Federal Govern- ment lacks that power and the States enjoy it.’’ 11 The Constitu- tion’s silence about the States being limited meant that the States could legislate additional qualifications. 9 Article I, § 2, cl. 2, provides that a person may qualify as a Representative if she is at least 25 years old, has been a United States citizen for at least seven years, and is an inhabitant, at the time of the election, of the State in which she is chosen. The qualifications established for Senators, Article I, § 3, cl. 3, are an age of 30, nine years’ citizenship, and being an inhabitant of the State at the time of election. 10 See Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78 (1995). 11 514 U.S. at 848 (Justice Thomas dissenting). See generally id. at 846–65. VerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00004 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1 4 ART. I—LEGISLATIVE DEPARTMENT Radically different were the views of the majority of the Court. After the adoption of the Constitution, the States had two kinds of powers: powers that they had before the founding and powers that were reserved to them. The States could have no reserved powers with respect to the Federal Government. ‘‘As Justice Story recog- nized, ‘the states can exercise no powers whatsoever, which exclu- sively spring out of the existence of the national government, which the constitution does not delegate to them .
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