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U.S. Constitution--1996 Supplement This publication supplements Senate Document 103±6, The Constitution of the United States of America: Analysis and InterpretationÐit should be inserted in the pocket on the inside back cover of that volume 104TH CONGRESS DOCUMENT SENATE 2d Session No. 104±14 " ! THE CONSTITUTION OF THE UNITED STATES OF AMERICA ANALYSIS AND INTERPRETATION 1996 SUPPLEMENT ANALYSIS OF CASES DECIDED BY THE SUPREME COURT OF THE UNITED STATES TO JULY 1, 1996 PREPARED BY THE CONGRESSIONAL RESEARCH SERVICE LIBRARY OF CONGRESS JOHNNY H. KILLIAN GEORGE A. COSTELLO KENNETH R. THOMAS EDITORS U.S. GOVERNMENT PRINTING OFFICE 22±725 CC WASHINGTON : 1997 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, DC 20402 ARTICLE I Delegation [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 premedicated 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 penaltyÐCongress' power under Article I, § 8, cl. 14, is not exclu- siveÐand 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 doctrineÐemphasizing arrogation of power by a branch and impairment of another branch's ability to carry out its functionsÐand the delegation doctrine, ``another 1 116 S. Ct. 1737 (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, 116 S. Ct. at 1742, a point on which Justice Thomas disagreed, id. at 1753. 4 Rule for Courts-Martial; see 116 S. Ct. at 1740, 1741±42. 5 10 U.S.C. §§ 818, 836(a), 856. 6 116 S. Ct. at 1750±51. 1 2 ARTICLE IÐLEGISLATIVE DEPARTMENT 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-pow- ers principles altogether. Qualifications of Members of Congress [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, who would hold that Congress, for dif- ferent reasons, could not add to qualifications, although the States could. Id. at 875± 76. [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 twen- ty-two other States, all but two by citizen initiatives, had imposed maximum numbers of terms that Members of Congress could serve. In this case, the Court held that the Constitution's qualifications 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 increase quali- fications, 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- 7 Id. at 1743±44. 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. 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 7 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 years, nine years citizenship, and an inhabitant of the State. 10 See Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78 (1995). ARTICLE IÐLEGISLATIVE DEPARTMENT 3 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 at the foundation of the Constitu- tion's founding. In the dissent's view, the Constitution was the re- sult of the resolution of the peoples of the separate States to create the National Government. The conclusion to be drawn from this was that the peoples in the States agreed to surrender powers ex- pressly forbidden them and to surrender those limited powers that they had delegated to the Federal Government expressly or by nec- essary implication. They retained all other powers and still re- tained them. Thus, ``where the Constitution is silent about the ex- ercise of a particular powerÐthat is, where the Constitution does not speak either expressly or by necessary implicationÐthe Federal Government lacks that power and the States enjoy it.'' 11 The con- stitution's silence about the States being limited meant that the States could legislate additional qualifications. 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 that were re- served to them. The States could have no reserved powers with re- spect to the Federal Government. ``As Justice Story recognized, `the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitu- tion does not delegate to them. No state can say, that it has reserved, what it never possessed.' '' 12 The States could not before the founding have possessed powers to legislate respecting the Fed- eral Government, and since the Constitution did not delegate to the States the power to prescribe qualifications for Members of Con- gress, the States did not have it. 13 Evidently, the opinions in this case reflect more than a deci- sion on this particular dispute. They rather represent conflicting philosophies within the Court respecting the scope of national power in the context of the States, an issue at the core of many controversies today. 11 514 U.S. at 848 (Justice Thomas dissenting). See generally id. at 846±65. 12 Id. at 802. 13 Id. at 798±805. And see id. at 838±45 (Justice Kennedy concurring). 4 ARTICLE IÐLEGISLATIVE DEPARTMENT [P. 115, add to n.317:] Another census controversy was resolved in Wisconsin v. City of New York, 116 S. Ct. 1091 (1996), in which the Court held that the decision of the Secretary of Commerce not to conduct a post-enumeration survey and statistical adjustment for an undercount in the 1990 Census was reasonable and within the bounds of discre- tion conferred by the Constitution and statute. Commerce Clause [P. 207, add to text following n.820:] For the first time in almost sixty years, 14 the Court invali- dated a federal law as exceeding Congress' authority under the commerce clause. 15 The statute was a provision making it a federal offense to possess a firearm within 1,000 feet of a school.
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