To some indeterminate extent, the power to wage war embraces the power to prepare for it and the power to deal with the problems of adjustment following its cessation. Justice Story em[[Page 320]]phasized that ``[i]t is important also to consider, that the surest means of avoiding war is to be prepared for it in peace. . . . How could a readiness for war in time of peace be safely prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation? . . . It will be in vain to oppose constitutional barriers to the impulse of self-preservation.''\1494\ Authoritative judicial recognition of the power is found in Ashwander v. Tennessee Valley Authority,\1495\ in which the power of the Federal Government to construct and operate a dam and power plant, pursuant to the National Defense Act of June 3, 1916,\1496\ was sustained. The Court noted that the assurance of an abundant supply of electrical energy and of nitrates, which would be produced at the site, ``constitute national defense assets'' and the project was justifiable under the war powers.\1497\ \1494\3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1180. \1495\297 U.S. 288 (1936). \1496\39 Stat. 166 (1916). \1497\297 U.S., 327-328.
---------------------------------------------------------------------------
The post-World War II years, though nominally peacetime, constituted the era of the Cold War and the occasions for several armed conflicts, notably in Korea and Indochina, in which the Congress enacted much legislation designed to strengthen national security, including an apparently permanent draft,\1501\ authorization of extensive space exploration,\1502\ authorization for wage and price con[[Page 321]]trols,\1503\ and continued extension of the Renegotiation Act to recapture excess profits on defense contracts.\1504\ Additionally, the period saw extensive regulation of matter affecting individual rights, such as loyalty-security programs,\1505\ passport controls,\1506\ and limitations on members of the Communist Party and associated organizations,\1507\ all of which are dealt with in other sections. \1498\60 Stat. 755 (1946), 42 U.S.C. Sec. 1801 et seq. \1499\108(a), 70 Stat. 374, 378 (1956), 23 U.S.C. Sec. 101(b), naming the Interstate System the ``National System of Interstate and Defense Highways.'' \1500\72 Stat. 1580 (1958), as amended, codified to various sections of Titles 20 and 42. \1501\Universal Military Training and Service Act of 1948, 62 Stat. 604, as amended, 50 U.S.C. App. Sec. Sec. 451-473.
Actual conscription has been precluded as of July 1, 1973, P. L. 92-129, 85 Stat. 353, 50 U. S. C. App. 467(c), although registration for possible conscription is in effect. P. L. 96-282, 94 Stat. 552 (1980). \1502\National Aeronautics and Space Act of 1958, 72 Stat. 426, as amended, codified in various sections of Titles 5, 18, and 50. \1503\Title II of the Defense Production Act Amendments of 1970, 84 Stat. 799, as amended, provided temporary authority for wage and price controls, a power which the President subsequently exercised. E.O. 11615, 36 Fed Reg. 15727 (August 16, 1971). Subsequent legislation expanded the President's authority. 85 Stat. 743, 12 U.S.C. Sec. 1904 note. \1504\Renogtiation Act of 1951, 65 Stat. 7, as amended, 50 U.S.C. App. Sec. 1211 et seq. \1505\E.g., Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961); Peters v. Hobby, 349 U.S. 331 (1955). \1506\Zemel v. Rusk, 381 U.S. 1 (1965); United States v. Laub, 385 U.S. 475 (1967). \1507\United States v. Robel, 389 U.S. 258 (1967); United States v. Brown, 381 U.S. 437 (1965).
--------------------------------------------------------------------------
A particular province of such legislation is that designed to effect a transition from war to peace.
---------------------------------------------------------------------------
A similar issue was presented after World War II in which the Court held that the authority of Congress to regulate rents by virtue of the war power did not end with the presidential proclamation terminating hostilities on December 31, 1946.\1514\ However,[[Page 322]]the Court cautioned that ``[w]e recognize the force of the argument that the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and Tenth Amendments as well. There are no such implications in today's decision.''\1515\ \1514\Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948). See also Fleming Mohawk Wrecking Co., 331 U.S. 111 (1947). \1515\Id., 333 U.S., 143-144.
---------------------------------------------------------------------------
In the same year, the Court sustained by only a five-to-four vote the Government's contention that the power which Congress had conferred upon the President to deport enemy aliens in times of a declared war was not exhausted when the shooting stopped.\1516\ ``It is not for us to question,'' said Justice Frankfurter for the Court, ``a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilites [sic] do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come.''\1517\ \1516\Ludecke v. Watkins, 335 U.S. 160 (1948). \1517\Id., 170.
---------------------------------------------------------------------------
Delegation of Legislative Power in Wartime The Court has insisted that in times of war as in times of peace ``the respective branches of the Government keep within the power assigned to each,''\1518\ thus raising the issue of permissible delegation, inasmuch as during a war Congress has been prone to delegate many more powers to the President than at other times.\1519\ But the number of cases actually discussing the matter is few.\1520\ Two theories have been advanced at times when the delegation doctrine carried more of a force than it has in recent years.
First, it is suggested that inasmuch as the war power is inherent in the Federal Government, and one shared by the legislative and executive branches, Congress does not really delegate legislative power when it authorizes the President to exercise the war power in a prescribed manner, a view which entirely overlooks the fact that the Constitution expressly vests the war power as a legislative power in Congress. Second, it is suggested that Congress' power to delegate in wartime is limited as in other situations but that the[[Page 323]]existence of a state of war is a factor weighing in favor of the validity of the delegation. \1518\Lichter v. United States, 334 U.S. 742, 779 (1948). \1519\For an extensive consideration of this subject in the context of the President's redelegation of it, see N. Grundstein, Presidential Delegation of Authority in Wartime (Pittsburgh: 1961). \1520\In the Selective Draft Law Cases, 245 U.S. 366, 389 (1918), the objection was dismissed without discussion. The issue was decided by reference to peacetime precedents in Yakus v. United States, 321 U.S. 414, 424 (1944).
--------------------------------------------------------------------------
The first theory was fully stated by Justice Bradley in Hamilton v. Dillin,\1521\ upholding a levy imposed by the Secretary of the Treasury pursuant to an act of Congress. To the argument that the levy was a tax the fixing of which Congress could not delegate, Justice Bradley noted that the power exercised ``does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the Government. . . .''\1522\ \1521\21 Wall. (88 U.S.) 73 (1875). \1522\Id., 96-97. Cf. United States v. Chemical Foundation, 272 U.S. 1 (1926).
-------------------------------------------------------------------------
Both theories found expression in different passages of Chief Justice Stone's opinion in Hirabayashi v. United States,\1523\ upholding executive imposition of a curfew on Japanese-Americans pursuant to legislative delegation. On the one hand, he spoke to Congress and the Executive, ``acting in cooperation,'' to impose the curfew,\1524\ while on the other hand, he noted that a delegation in which Congress has determined the policy and the rule of conduct, leaving to the Executive the carry-out of the matter, is permissible delegation.\1525\ \1523\320 U.S. 81 (1943). \1524\Id., 91-92, 104. \1525\Id., 104.
---------------------------------------------------------------------------
A similar ambiguity is found in Lichter v. United States,\1526\ upholding the Renegotiation Act, but taken as a whole the Court there espoused the second theory. ``The power [of delegation] is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to method to be employed may be essential to an effective use of its war powers by Congress. The degree to which Congress must specify its policies and standards in order that the administrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition. . . . Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind.''\1527\ The Court then examined the exigencies of war and concluded that the delegation was valid.\1528\ \1526\334 U.S. 742 (1948). \1527\Id., 778-779, 782. \1528\Id., 778-783.
---------------------------------------------------------------------------
[[Page 324]]
---------------------------------------------------------------------------
Similarly, in Duncan v. Kahanamoku,\1533\ the Court declared that the authority granted by Congress to the territorial governor of Hawaii to declare marital law under certain circumstances, which he exercised in the aftermath of the attack on Pearl Harbor, did not warrant the supplanting of civil courts with military tribunals and the trial of civilians for civilian crimes in these military tribunals at a time when no obstacle stood in the way of the operation of the civil courts, except, of course, the governor's order. \1533\327 U.S. 304 (1946).
--------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
[[Page 327]] Ex parte Milligan, from which these words are quoted, is justly deemed one of the great cases undergirding civil liberty in this country in times of war or other great crisis, holding that except in areas in which armed hostilities have made enforcement of civil law impossible constitutional rights may not be suspended and civilians subjected to the vagaries of military justice. Yet, the words were uttered after the cessation of hostilities, and the Justices themselves recognized that with the end of the shooting there arose the greater likelihood that constitutional rights could be and would be observed and that the Court would require the observance.\1546\ This pattern recurs with each critical period. \1546\``During the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which were happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.'' Id., 109 (emphasis by Court).
---------------------------------------------------------------------------
That the power of Congress to punish seditious utterances in wartime is limited by the First Amendment was assumed by the Court in a series of cases,\1547\ in which it nonetheless affirmed conviction for violations of the Espionage Act of 1917.\1548\ The Court also upheld a state law making it an offense for persons to advocate that citizens of the State should refuse to assist in prosecuting war against enemies of the United States.\1549\ Justice Holmes matter-of-factly stated the essence of the pattern that we have mentioned. ``When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.''\1550\ By far, the most dramatic restraint of personal liberty imposed during World War II was the detention and relocation of the Japanese residents of the Western States, including those who were native-born citizens of the United States.
When various phases of this program were challenged, the Court held that in order to prevent espionage and sabotage, the authorities could restrict the movement of these persons by a curfew order,\1551\ even by a regulation excluding them from defined areas,\1552\ but that a citizen of Japanese ances[[Page 328]]try whose loyalty was conceded could not be detained in a relocation camp.\1553\ \1547\Schneck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Surgarman v. United States, 249 U.S. 182 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Abrams v. United States, 250 U.S. 616 (1919). \1548\40 Stat. 217 (1917), as amended by 40 Stat. 553 (1918). \1549\Gilbert v. Minnesota, 254 U.S. 325 (1920). \1550\Schenck v. United States, 249 U.S. 47, 52 (1919). \1551\Hirabayashi v. United States, 320 U.S. 81 (1943). \1552\Korematsu v. United States, 323 U.S. 214 (1944). \1553\Ex parte Endo, 323 U.S. 283 (1944).
---------------------------------------------------------------------------
A mixed pattern emerges from an examination of the Cold War period. Legislation designed to regulate and punish the organizational activities of the Communist Party and its adherents was at first upheld\1554\ and then in a series of cases was practically vitiated.\1555\ Against a contention that Congress' war powers had been utilized to achieve the result, the Court struck down for the second time in history a congressional statute as an infringement of the First Amendment.\1556\ It voided a law making it illegal for any member of a ``communist-action organization'' to work in a defense facility.\1557\
The majority reasoned that the law overbroadly required a person to choose between his First Amendment-protected right of association and his right to hold a job, without attempting to distinguish between those persons who constituted a threat and those who did not.\1558\ \1554\E.g., Dennis v. United States, 341 U.S. 494 (1951); Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961); American Communications Association v. Douds, 339 U.S. 382 (1950). \1555\E.g., Yates v. United States, 354 U.S. 298 (1957); Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965); United States v. Brown, 381 U.S. 437 (1965). \1556\United States v. Robel, 389 U.S. 258 (1967); cf. Aptheker v. Secretary of State, 378 U.S. 500 (1964). And see Schneider v. Smith, 390 U.S. 17 (1968). \1557\Sec. 5(a)(1)(D) of the Subversive Control Act of 1950, 64 Stat 992, 50 U.S.C. Sec. 784(a)(1)(D). \1558\Id., 389 U.S., 264-266. Justices Harlan and White dissented, contending that the right of association should have been balanced against the public interest and finding the weight of the latter the greater. Id., 282.
---------------------------------------------------------------------------
On the other hand, in New York Times Co. v. United States,\1559\ a majority of the Court agreed that in appropriate circumstances the First Amendment would not preclude a prior restraint of publication of information that might result in a sufficient degree of harm to the national interest, although a different majority concurred in denying the Government's request for an injunction in that case.\1560\ \1559\403 U.S. 713 (1971). \1560\The result in the case was reached by a six-to-three majority. The three dissenters, Chief Justice Burger, id., 748, Justice Harlan, id., 752, and Justice Blackmun, id., 759, would have granted an injunction in the case; Justices Stewart and White, id., 727, 730, would not in that case but could conceive of cases in which they would.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
During World War II, the Court unanimously upheld the power of the President to order to trial before a military tribunal German saboteurs captured within this Country.\1565\ Enemy combatants, said Chief Justice Stone, who without uniforms come secretly through the lines during time of war, for the purpose of committing hostile acts, are not entitled to the status of prisoners of war but are unlawful combatants punishable by military tribunals. \1565\Ex parte Quirin, 317 U.S. 1 (1942).
---------------------------------------------------------------------------
Eminent Domain.--An often-cited dictum uttered shortly after the Mexican War asserted the right of an owner to compensation for property destroyed to prevent its falling into the hands of the enemy, or for that taken for public use.\1566\ In United States v. Russell,\1567\ decided following the Civil War, a similar conclusion was based squarely on the Fifth Amendment, although the case did not necessarily involve the point. Finally, in United States v. Pacific Railroad,\1568\ also a Civil War case, the Court held that the United States was not responsible for the injury or destruction of private property by military operations, but added that it did not have in mind claims for property of loyal citizens taken for the use of the national forces. ``In such cases,'' the Court said, ``it has been the practice of the government to make compensation for the property taken. . . . although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clauses.''\1569\ \1566\Mitchell v. Harmony, 13 How. (54 U.S.) 115, 134 (1852). \1567\13 Wall. (80 U.S.) 623, 627 (1871). \1568\120 U.S. 227 (1887). \1569\Id., 239.
---------------------------------------------------------------------------
Meantime, however, in 1874, a committee of the House of Representatives, in an elaborate report on war claims growing out of the Civil War, had voiced the opinion that the Fifth Amendment embodies the distinction between a taking of property in the course of military operations or other urgent military necessity, and other takings for war purposes, and required compensation of owners in the latter class of cases.\1570\ In determining what constitutes just compensation for property requisitioned for war purposes during[[Page 330]]World War II, the Court has assumed that the Fifth Amendment is applicable to such takings.\1571\ But as to property seized and destroyed to prevent its use by the enemy, it has relied on the principle enunciated in United States v. Pacific Railroad as justification for the conclusion that owners thereof are not entitled to compensation.\1572\ \1570\H.R. Rept. No. 262, 43d Cong., 1st Sess. (1874), 39-40. \1571\United States v. Commodities Trading Corp., 339 U.S. 121 (1950); United States v. Toronto Nav. Co., 338 U.S. 396 (1949); Kimball Laundry Co. v. United States, 338 U.S. 1 (1949); United States v. Cors, 337 U.S. 325 (1949); United States v. Felin & Co., 334 U.S. 624 (1948); United States v. Petty Motor Co., 327 U.S. 372 (1946); United States v. General Motors Corp., 323 U.S. 373 (1945). \1572\United States v. Caltex, Inc., 344 U.S. 149, 154 (1952). Justices Douglas and Black dissented.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
During World War II and thereafter, economic controls were uniformly sustained.\1576\ An apartment house owner who complained that he was not allowed a ``fair return'' on the property was dismissed with the observation that ``a nation which can demand the lives of its men and women in the waging of . . . war is under no constitutional necessity of providing a system of price control . . . which will assure each landlord a `fair return' on his property.''\1577\ The Court also held that rental ceilings could be established without a prior hearing when the exigencies of national security precluded the delay which would ensue.\1578\ \1576\Yakus v. United States, 321 U.S. 414 (1944); Bowles v. Willingham, 321 U.S. 503 (1944); Lockerty v. Phillips, 319 U.S. 182 (1943); Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947); Lichter v. United States, 334 U.S. 742 (1948). \1577\Bowles v. Willingham, 321 U.S. 503, 519 (1944). \1578\Id., 521. The Court stressed, however, that Congress had provided for judicial review after the regulations and orders were made effective.
---------------------------------------------------------------------------
[[Page 331]] But in another World War I case, the Court struck down a statute which penalized the making of ``any unjust or unreasonable rate or charge in handling . . . any necessaries''\1579\ as repugnant to the Fifth and Sixth Amendments in that it was so vague and indefinite that it denied due process and failed to give adequate notice of what acts would violate it.\1580\ \1579\Act of October 22, 1919, 2, 41 Stat. 297. \1580\United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921).
---------------------------------------------------------------------------
Cls. 15 and 16--
The Federal Government may call out the militia in case of civil war; its authority to suppress rebellion is found in the power to suppress insurrection and to carry on war.\1582\ The act of February 28, 1795,\1583\ which delegated to the President the power to call out the militia, was held constitutional.\1584\ A militiaman who refused to obey such a call was not ``employed in the service of the United States so as to be subject[[Page 332]]to the article of war,'' but was liable to be tried for disobedience of the act of 1795.\1585\ \1581\Moore v. Houston, 3 S. & R. (Pa.) 169 (1817), affirmed, Houston v. Moore, 5 Wheat. (18 U.S.) 1 (1820). \1582\Texas v. White, 7 Wall. (74 U.S.) 700 (1869); Tyler v. Defrees, 11 Wall. (78 U.S.) 331 (1871). \1583\1 Stat. 424 (1795), 10 U.S.C. Sec. 332. \1584\Martin v. Mott, 12 Wheat. (25 U.S.) 19, 32 (1827). \1585\Houston v. Moore, 5 Wheat. (18 U.S.) 1 (1820); Martin v. Mott, 12 Wheat. (25 U.S.) 19 (1827).
---------------------------------------------------------------------------
Regulation of the Militia The power of Congress over the militia ``being unlimited, except in the two particulars of officering and training them . . . it may be exercised to any extent that may be deemed necessary by Congress. . . . The power of the state government to legislate on the same subjects, having existed prior to the formation of the Constitution, and not having been prohibited by that instrument, it remains with the States, subordinate nevertheless to the paramount law of the General Government . . .''\1586\ Under the National Defense Act of 1916,\1587\ the militia, which hitherto had been an almost purely state institution, was brought under the control of the National Government. The term ``militia of the United States'' was defined to comprehend ``all able-bodied male citizens of the United States and all other able-bodied males who have . . . declared their intention to become citizens of the United States,'' between the ages of eighteen and forty-five.
The act reorganized the National Guard, determined its size in proportion to the population of the several States, required that all enlistments be for ``three years in service and three years in reserve,'' limited the appointment of officers to those who ``shall have successfully passed such tests as to . . . physical, moral and professional fitness as the President shall prescribe,'' and authorized the President in certain emergencies to ``draft into the military service of the United States to serve therein for the period of the war unless sooner discharged, and all members of the National Guard and National Guard Reserve,'' who thereupon should ``stand discharged from the militia.''\1588\ \1586\Houston v. Moore, 5 Wheat. (18 U.S.) 1, 16 (1820). Organizing and providing for the militia being constitutionally committed to Congress and statutorily shared with the Executive, the judiciary is precluded from exercising oversight over the process, Gilligan v. Morgan, 413 U.S. 1 (1973), although wrongs committed by troops are subject to judicial relief in damages. Scheuer v. Rhodes, 416 U.S. 233 (1974). \1587\39 Stat. 166, 197, 198, 200, 202, 211 (1916), codified in sections of Titles 10 & 32. See Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181 (1940). \1588\Military and civilian personnel of the National Guard are state, rather than federal, employees and the Federal Government is thus not liable under the Tort Claims Act for their negligence. Maryland v. United States, 381 U.S. 41 (1965)
---------------------------------------------------------------------------
The militia clauses do not constrain Congress in raising and supporting a national army. The Court has approved the system of ``dual enlistment,'' under which persons enlisted in state militia (National Guard) units simultaneously enlist in the National[[Page 333]]Guard of the United States, and, when called to active duty in the federal service, are relieved of their status in the state militia. Consequently, the restrictions in the first militia clause have no application to the federalized National Guard; there is no constitutional requirement that state governors hold a veto power over federal duty training conducted outside the United States or that a national emergency be declared before such training may take place.\1589\ \1589\Perpich v. Department of Defense, 496 U.S. 434 (1990).
---------------------------------------------------------------------------
Clause 17.
Thus, Madison noted that ``[t]he indispensable necessity of complete authority at the seat of government, carries its own evidence with it. . . . Without it, not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State comprehending the seat of government, for protection in the exercise of their duty, might bring on the national council an imputa[[Page 334]]tion of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the confederacy.''\1591\ \1590\J. Fiske, The Critical Period of American History, 1783-1789 (Boston: 1888), 112-113; W. Tindall, The Origin and Government of the District of Columbia (Washington: 1903), 31-36. \1591\The Federalist, No. 43 (J. Cooke ed. 1961), 288-289. See also 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1213, 1214.
---------------------------------------------------------------------------
The actual site was selected by compromise, Northerners accepting the Southern-favored site on the Potomac in return for Southern support for a Northern aspiration, assumption of Revolutionary War debts by the National Government.\1592\ Maryland and Virginia both authorized the cession of territory\1593\ and Congress accepted.\1594\ Congress divided the District into two counties, Washington and Alexandria, and provided that the local laws of the two States should continue in effect.\1595\ It also established a circuit court and provided for the appointment of judicial and law enforcement officials.\1596\ \1592\W. Tindall, The Origin and Government of the District of Columbia (Washington: 1903), 5-30. \1593\Maryland Laws 1798, ch. 2, p. 46; 13 Laws of Virginia 43 (Hening 1789). \1594\Act of July 16, 1790, 1 Stat. 130.
In 1846, Congress authorized a referendum in Alexandria County on the question of retroceding that portion to Virginia. The voters approved and the area again became part of Virginia. Laws of Virginia 1845-46, ch. 64, p. 50; Act of July 9, 1846, 9 Stat. 35; Proclamation of September 7, 1846; 9 Stat. 1000. Constitutional questions were raised about the retrocession but suit did not reach the Supreme Court until some 40 years later and the Court held that the passage of time precluded the raising of the question. Phillips v. Payne, 92 U.S. 130 (1875). \1595\Act of February 27, 1801, 2, 2 Stat. 103. The declaration of the continuing effect of state law meant that law in the District was frozen as of the date of cession, unless Congress should change it, which it seldom did. For some of the problems, see Tayloe v. Thompson, 5 Pet. (30 U.S.) 358 (1831); Ex parte Watkins, 7 Pet. (32 U.S.) 568 (1833); Stelle v. Carroll, 12 Pet. (37 U.S.) 201 (1838); Van Ness v. United States Bank, 13 Pet. (38 U.S.) 17 (1839); United States v. Eliason, 16 Pet. (41 U.S.) 291 (1842). \1596\Act of March 3, 1801, 1, 2 Stat. 115.
---------------------------------------------------------------------------
There seems to have been no consideration, at least none recorded, given at the Convention or in the ratifying conventions to the question of the governance of the citizens of the District.\1597\ Madison in The Federalist did assume that the inhabitants ``will have had their voice in the election of the government which is to exercise authority over them, as a municipal legislature for all local purposes, derived from their own suffrages, will of course be allowed them. . . .''\1598\ Although there was some dispute about the constitutional propriety of permitting local residents a measure of ``home rule,'' to use the recent term,\1599\ almost from the first there[[Page 335]]were local elections provided for. In 1802, the District was divided into five divisions, in some of which the governing officials were elected; an elected mayor was provided in 1820. District residents elected some of those who governed them until this form of government was swept away in the aftermath of financial scandals in 1874\1600\ and replaced with presidentially appointed Commission in 1878.\1601\
The Commission lasted until 1967 when it was replaced by an appointed Mayor-Commissioner and an appointed city council.\1602\ In recent years, Congress provided for a limited form of self-government in the District, with the major offices filled by election.\1603\ District residents vote for President and Vice President\1604\ and elect a nonvoting delegate to Congress.\1605\ An effort by constitutional amendment to confer voting representation in the House and Senate failed of ratification.\1606\ \1597\The objections raised in the ratifying conventions and elsewhere seemed to have consisted of prediction of the perils to the Nation of setting up the National Government in such a place. 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1215, 1216. \1598\The Federalist, No. 43 (J. Cooke ed. 1961), 289. \1599\
Such a contention was cited and rebutted in 3 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1218. \1600\Act of May 3, 1802, 2 Stat. 195; Act of May 15, 1820, 3 Stat. 583; Act of February 21, 1871, 16 Stat. 419; Act of June 20, 1874, 18 Stat. 116. The engrossing story of the postwar changes in the government is related in W. Whyte, The Uncivil War: Washington During the Reconstruction (Washington: 1958). \1601\Act of June 11, 1878, 20 Stat. 103. \1602\Reorganization Plan No. 3 of 1967, 32 Fed. Reg. 11699, reprinted as appendix to District of Columbia Code, Title I. \1603\District of Columbia Self-Government and Governmental Reorganization Act, P.L. 93-198, 87 Stat. 774. \1604\Twenty-third Amendment. \1605\P.L. 91-405, 84 Stat. 848, D.C. Code, Sec. 1-291. \1606\H.J. Res. 554, 95th Congress, passed the House on March 2, 1978, and the Senate on August 22, 1978, but only 16 States had ratified before the expiration after seven years of the proposal.
---------------------------------------------------------------------------
Constitutionally, it appears that Congress is neither required to provide for a locally elected government\1607\ nor precluded from delegating its powers over the District to an elective local government.\1608\ The Court has indicated that the ``exclusive'' jurisdiction granted was meant to exclude any question of state power over the area and was not intended to require Congress to exercise all powers itself.\1609\ \1607\Loughborough v. Blake, 5 Wheat. (18 U.S.) 317 (1820); Heald v. District of Columbia, 259 U.S. 114 (1922). \1608\District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953). The case upheld the validity of ordinances enacted by the District governing bodies in 1872 and 1873 prohibiting racial discrimination in places of public accommodations. \1609\Id., 109-110. See also Thompson v. Lessee of Carroll, 22 How. (63 U.S.) 422 (1860); Stoutenburgh v. Hennick, 129 U.S. 141 (1889).
---------------------------------------------------------------------------
Chief Justice Marshall for the Court held in Hepburn v. Ellzey\1610\ that the District of Columbia was not a State within the meaning of the diversity jurisdiction clause of Article III. This[[Page 336]]view, adhered to for nearly a century and a half,\1611\ was overturned by the Court in 1949 upholding the constitutionality of a 1940 statute authorizing federal courts to take jurisdiction of nonfederal controversies between residents of the District of Columbia and the citizens of a State.\1612\ The decision was by a five to four division, but the five in the majority disagreed among themselves on the reasons. Three thought the statute to be an appropriate exercise of the power of Congress to legislate for the District of Columbia pursuant to this clause without regard to Article III.\1613\ Two others thought that Hepburn v. Ellzey had been erroneously decided and would have overruled it.\1614\ But six Justices rejected the former rationale, and seven Justices rejected the latter one; since five Justices agreed, however, that the statute was constitutional, it was sustained. \1610\2 Cr. (6 U.S.) 445 (1805); see also Sere v. Pitot, 6 Cf. (10 U.S.) 332 (1810); New Orleans v. Winter, 1 Wheat. (14 U.S.) 91 (1816). The District was held to be a State within the terms of a treaty. Geofroy v. Riggs, 133 U.S. 258 (1890). \1611\Barney v. City of Baltimore, 6 Wall. (73 U.S.) 280 (1868); Hooe v. Jamieson, 166 U.S. 395 (1897); Hooe v. Werner, 166 U.S. 399 (1897). \1612\National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). \1613\Id., 588-600 (Justices Jackson, Black and Burton). \1614\Id., 604 (Justices Rutledge and Murphy). The dissents were by Chief Justice Vinson, id., 626, joined by Justice Douglas, and by Justice Frankfurter, id., 646, joined by Justice Reed.
---------------------------------------------------------------------------
It is not disputed that the District is a part of the United States and that its residents are entitled to all the guarantees of the United States Constitution including the privilege of trial by jury\1615\ and of presentment by a grand jury.\1616\ Legislation restrictive of liberty and property in the District must find justification in facts adequate to support like legislation by a State in the exercise of its police power.\1617\ \1615\Callan v. Wilson, 127 U.S. 540 (1888); Capital Traction Co. v. Hof, 174 U.S. 1 (1899). \1616\United States v. Moreland, 258 U.S. 433 (1922). \1617\Wright v. Davidson, 181 U.S. 371, 384 (1901); cf. Adkins v. Children's Hospital, 261 U.S. 525 (1923), overruled in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
---------------------------------------------------------------------------
Congress possesses over the District of Columbia the blended powers of a local and national legislature.\1618\ This fact means that in some respects ordinary constitutional restrictions do not operate; thus, for example, in creating local courts of local jurisdiction in the District, Congress acts pursuant to its legislative powers under clause 17 and need not create courts that comply that Article III court requirements.\1619\ And when legislating for the District Con[[Page 337]]gress remains the legislature of the Union, so that it may give its enactments nationwide operation to the extent necessary to make them locally effective.\1620\ \1618\Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524, 619 (1838): Shoemaker v. United States, 147 U.S. 282, 300 (1893); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 435 (1932); O'Donoghue v. United States, 289 U.S. 516, 518 (1933). \1619\In the District of Columbia Court Reform and Criminal Procedure Act of 1970, P.L. 91-358, 111, 84 Stat. 475, D.C. Code, Sec. 11-101, Congress specifically declared it was acting pursuant to Article I in creating the Superior Court and the District of Columbia Court of Appeals and pursuant to Article III in continuing the United States District Court and the United States Court of Appeals for the District of Columbia. The Article I courts were sustained in Palmore v. United States, 411 U.S. 389 (1973). See also Swain v. Pressley, 430 U.S. 372 (1977). The latter, federal courts, while Article III courts, traditionally have had some non-Article III functions imposed on them, under the ``hybrid'' theory announced in O'Donoghue v. United States, 289 U.S. 516 (1933). E.g., Hobson v. Hansen, 265 F. Supp. 902 (D.C.D.C. 1967), app. dismd., 393 U.S. 801 (1968) (power then vested in District Court to appoint school board members). See also Keller v. Potomac Electric Co., 261 U.S. 428 (1923); Embry v. Palmer, 107 U.S. 3 (1883). \1620\Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 428 (1821).
---------------------------------------------------------------------------
AUTHORITY OVER PLACES PURCHASED ``Places'' This clause has been broadly construed to cover all structures necessary for carrying on the business of the National Government.\1621\ It includes post offices,\1622\ a hospital and a hotel located in a national park,\1623\ and locks and dams for the improvement of navigation.\1624\ But it does not cover lands acquired for forests, parks, ranges, wild life sanctuaries or flood control.\1625\ Nevertheless, the Supreme Court has held that a State may convey, and the Congress may accept, either exclusive or qualified jurisdiction over property acquired within the geographical limits of a State, for purposes other than those enumerated in clause 17.\1626\ \1621\James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937). \1622\Battle v. United States, 209 U.S. 36 (1908). \1623\Arlington Hotel v. Fant, 278 U.S. 439 (1929). \1624\James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937). \1625\Collins v. Yosemite Park Co., 304 U.S. 518, 530 (1938). \1626\Id., 528.
---------------------------------------------------------------------------
After exclusive jurisdiction over lands within a State has been ceded to the United States, Congress alone has the power to punish crimes committed within the ceded territory.\1627\ Private property located thereon is not subject to taxation by the State,\1628\ nor can state statutes enacted subsequent to the transfer have any operation therein.\1629\ But the local laws in force at the date of cession that are protective of private rights continue in force until abro[[Page 338]]gated by Congress.\1630\ Moreover, as long as there is no interference with the exclusive jurisdiction of the United States, an area subject thereto may be annexed by a municipality.\1631\ \1627\Battle v. United States, 209 U.S. 36 (1908); Johnson v. Yellow Cab Co., 321 U.S. 383 (1944); Bowen v. Johnston, 306 U.S. 19 (1939). \1628\Surplus Trading Co. v. Cook, 281 U.S. 647 (1930). \1629\Western Union Telegraph Co. v. Chiles, 214 U.S. 274 (1909); Arlington Hotel v. Fant, 278 U.S. 439 (1929); Pacific Coast Dairy v. Department of Agriculture, 318 U.S. 285 (1943). The Assimilative Crimes Act of 1948, 18 U.S.C. Sec. 13, making applicable to a federal enclave a subsequently enacted criminal law of the State in which the enclave is situated entails no invalid delegation of legislative power to the State. United States v. Sharpnack, 355 U.S. 286, 294, 296-297 (1958). \1630\Chicago, R. I. & P. Ry. Co. v. McGlinn, 114 U.S. 542, 545 (1885); Stewart & Co. v. Sadrakula, 309 U.S. 94 (1940). \1631\Howard v. Commissioners, 344 U.S. 624 (1953). As Howard recognized, such areas of federal property do not cease to be part of the State in which they are located and the residents of the areas are for most purposes residents of the State. Thus, a State may not constitutionally exclude such residents from the privileges of suffrage if they are otherwise qualified. Evans v. Cornman, 398 U.S. 419 (1970).
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Reservation of Jurisdiction by States For more than a century the Supreme Court kept alive, by repeated dicta,\1638\ the doubt expressed by Justice Story ``whether Congress are by the terms of the Constitution, at liberty to purchase lands for forts, dockyards, etc., with the consent of a State legislature, where such consent is so qualified that it will not justify the `exclusive legislation' of Congress there. It may well be doubted if such consent be not utterly void.''\1639\ But when the issue was squarely presented in 1937, the Court ruled that where the United States purchases property within a State with the consent of the latter, it is valid for the State to convey, and for the United States to accept, ``concurrent jurisdiction'' over such land, the State reserving to itself the right to execute process ``and such other jurisdiction and authority over the same as is not inconsistent with the jurisdiction ceded to the United States.''\1640\ The holding logically renders the second half of clause 17 superfluous. In a companion case, the Court ruled further that even if a general state statute purports to cede exclusive jurisdiction, such jurisdiction does not pass unless the United States accepts it.\1641\ \1638\Fort Leavenworth R.R. Co. v. Lowe, 114 U.S. 525, 532 (1885); United States v. Unzeuta, 281 U.S. 138, 142 (1930); Surplus Trading Co. v. Cook, 281 U.S. 647, 652 (1930). \1639\United States v. Cornell, 25 Fed. Cas. 646, 649 (No. 14,867) (C.C.D.R.I. 1819). \1640\James v. Dravo Contracting Co., 302 U.S. 134, 145 (1937). \1641\Mason Co. v. Tax Comm. 302 U.S. 186 (1937). See also Atkinson v. Tax Comm., 303 U.S. 20 (1938).
---------------------------------------------------------------------------
Clause 18. The Congress shall have Power * * * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof. COEFFICIENT OR ELASTIC CLAUSE Scope of Incidental Powers That this clause is an enlargement, not a constriction, of the powers expressly granted to Congress, that it enables the lawmakers to select any means reasonably adapted to effectuate those[[Page 340]]powers, was established by Marshall's classic opinion in McCulloch v. Maryland.\1642\ ``Let the end be legitimate,'' he wrote, ``let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.''\1643\ Moreover, the provision gives Congress a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution all powers vested in the National Government. Conversely, where necessary for the efficient execution of its own powers, Congress may delegate some measure of legislative power to other departments.\1644\ \1642\4 Wheat. (17 U.S.) 316 (1819). \1643\Id., 420. This decision had been clearly foreshadowed fourteen years earlier by Marshall's opinion in United States v. Fisher, 2 Cr. (6 U.S.) 358, 396 (1805). Upholding an act which gave priority to claims of the United States against the estate of a bankrupt he wrote: ``The government is to pay the debt of the Union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittance, by bills or otherwise, and to take those precautions which will render the transaction safe.'' \1644\Supra, pp. 73-89.
---------------------------------------------------------------------------
Operation of Coefficient Clause Practically every power of the National Government has been expanded in some degree by the coefficient clause. Under its authority Congress has adopted measures requisite to discharge the treaty obligations of the nation;\1645\ it has organized the federal judicial system and has enacted a large body of law defining and punishing crimes. Effective control of the national economy has been made possible by the authority to regulate the internal commerce of a State to the extent necessary to protect and promote interstate commerce.\1646\ The right of Congress to utilize all known and appropriate means for collecting the revenue, including the distraint of property for federal taxes,\1647\ and its power to acquire property needed for the operation of the Government by the exercise of the power of eminent domain,\1648\ have greatly extended the range of national power. But the widest application of the necessary and proper clause has occurred in the field of monetary and fiscal controls. Inasmuch as the various specific powers granted by Article I, Sec. 8, do not add up to a general legislative power over such matters, the Court has relied heavily upon this clause in sustaining[[Page 341]]the comprehensive control which Congress has asserted over this subject.\1649\ \1645\Neely v. Henkel, 180 U.S. 109, 121 (1901). See also Missouri v. Holland, 252 U.S. 416 (1920). \1646\Supra, pp. 165-167, 203-209. \1647\Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. (59 U.S. 272, 281 (1856). \1648\Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. Fox, 94 U.S. 315, 320 (1877). \1649\Supra., pp. 144-159.
---------------------------------------------------------------------------
That this power has been freely exercised is attested by the pages of the United States Code devoted to Title 18, entitled ``Criminal Code and Criminal Procedure.'' In addition numerous regulatory measures prescribe criminal penalties for infractions thereof. \1651\Ex parte Carll, 106 U.S. 521 (1883). \1652\United States v. Marigold, 9 How. (50 U.S.) 560, 567 (1850). \1653\Logan v. United States, 144 U.S. 263 (1892). \1654\United States v. Barnow, 239 U.S. 74 (1915). \1655\Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Waddell, 112 U.S. 76 (1884); In re Quarles and Butler, 158 U.S. 532, 537 (1895); Motes v. United States, 178 U.S. 458, (1900); United States v. Mosley, 238 U.S. 383 (1915). See also Rakes v. United States, 212 U.S. 55 (1909). \1656\Ex parte Curtis, 106 U.S. 371 (1882). \1657\18 U.S.C. Sec. 2385. \1658\See National Commission on Reform of Federal Criminal Laws, Final Report (Washington: 1970); National Commission on Reform of Federal Criminal Laws, Working Papers (Washington: 1970), 2 vols.
---------------------------------------------------------------------------
Maritime Law
Congress may implement the admiralty and maritime jurisdiction conferred upon the federal courts by revising and amending the maritime law that existed at the time the Constitution was adopted, but in so doing, it cannot go beyond the reach of that jurisdiction.\1681\ This power cannot be delegated to the States; hence, acts of Congress that purported to make state workmen's compensation laws applicable to maritime cases were held unconstitutional.\1682\ \1681\Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21 (1934). \1682\Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. Dawson & Co., 264 U.S. 219 (1924)