Article I, Section 8, Clause 18 — Necessary and Proper Clause

ArtI.S8.C18.1 Overview of Necessary and Proper Clause

The Necessary and Proper Clause¹ concludes Article I’s list of Congress’s enumerated powers with a general statement that Congress’s powers include not only those expressly listed, but also the authority to use all means “necessary and proper” for executing those express powers. Under the Necessary and Proper Clause, congressional power encompasses all implied and incidental powers that are “conducive” to the “beneficial exercise” of an enumerated power.² The Clause does not require that legislation be absolutely necessary to the exercise of federal power.³ Rather, so long as Congress’s end is within the scope of federal power under the Constitution, the Necessary and Proper Clause authorizes Congress to employ any means that are “appropriate and plainly adapted to the permitted end.”⁴

The Necessary and Proper Clause was included in the Constitution in response to the shortcomings of the Articles of Confederation, which had limited federal power to only those powers “expressly delegated to the United States.”⁵ While the Framers chose to follow the Articles in enumerating a list of specific federal powers—as opposed to some general statement of federal power⁶—they included the Necessary and Proper Clause to make clear that Congress’s power encompassed the implied power to use all appropriate means required to execute those express powers.⁷ The Necessary and Proper Clause was not a primary focus of debate at the Constitutional Convention itself, but its meaning quickly became a major issue in the debates over the ratification of the Constitution,⁸ and in the early Republic.⁹

The Supreme Court has interpreted the Necessary and Proper Clause as an extension of the other powers vested in the Federal Government, most notably Congress’s enumerated Article I powers.¹⁰ Thus, whenever the Supreme Court addresses the outer limits of Congress’s enumerated powers, it necessarily invokes the Necessary and Proper Clause as well, either explicitly or implicitly.¹¹ However, the Necessary and Proper Clause is not, in itself, an independent grant of congressional power.¹² Although the Necessary and Proper Clause is therefore implicated in many cases examining the extent of Congress’s power under, for example, the Commerce Clause, those decisions are primarily addressed elsewhere in the Constitution Annotated, under the particular enumerated federal power at issue.¹³

In a few cases, however, the Supreme Court has analyzed Congress’s power under the Necessary and Proper Clause separately from any specific enumerated power. Typically, these cases involve either multiple enumerated powers¹⁴ or congressional actions that are many steps removed from the exercise of the underlying enumerated federal power.¹⁵ Because the extent of the Necessary and Proper Clause defines the outer reaches of Congress’s Article I legislative powers, these cases, in effect, delineate the boundary between the authority of the Federal Government and those areas reserved to the states.¹⁶

This section first reviews the history of the Necessary and Proper Clause’s inclusion in the Constitution and its role in the ratification debates. Next, the section turns to the early judicial interpretation of the Clause, culminating in the Chief Justice John Marshall’s landmark 1819 opinion in McCulloch v. Maryland. After briefly reviewing the major nineteenth century Supreme Court decisions on the Necessary and Proper Clause following McCulloch, the section concludes with a review of the modern Supreme Court cases on the scope of Congress’s power under the Clause.

ArtI.S8.C18.2 Historical Background on Necessary and Proper Clause

Under the Articles of Confederation, the Federal Government’s powers were limited to those “expressly delegated to the United States.”¹ Whether to maintain this limitation or to provide broader or implied powers to the National Government was a matter of debate at the Constitutional Convention. Under the South Carolina Plan of government presented by Charles Pinckney, the states would have retained all powers “not expressly delegated.”² Similarly, the New Jersey Plan would have slightly expanded federal power by amending the Articles of Confederation to add new enumerated federal powers.³ At the other extreme, Alexander Hamilton’s plan would have empowered the national legislature to pass “all laws whatsoever,” subject only to the veto of the executive.⁴

The Virginia Plan of government, which ultimately became the blueprint for the Constitution, took a different approach. As presented to the Convention by Edmund Randolph, Resolution VI of the Virginia Plan would have granted Congress power to “legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.”⁵ Several delegates, including Pinckney and John Rutledge, objected to the vagueness of the word “incompetent,”⁶ but a motion to replace this general statement with a specific enumeration of powers failed by an equally divided vote.⁷ On July 17, 1787, the Convention approved Resolution VI following an amendment by Gunning Bedford, resolving that Congress should have power to legislate “in all cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.”⁸

On July 26, 1787, the Convention referred the amended Resolution VI (along with the other resolutions approved by the Convention) to the Committee of Detail, which developed the first draft of the Constitution.⁹ Ultimately, the Committee replaced Resolution VI’s general statement of national legislative power with a list of enumerated powers (essentially those in the Articles of Confederation, plus a number of additional powers), followed by the Necessary and Proper Clause.¹⁰ Because the Committee of Detail did not keep any record of its deliberations, it is a matter of speculation why it made this change.¹¹

Although there is no record of the Committee’s motivations, it is possible to trace the drafting history of the Necessary and Proper Clause based on the Committee’s papers. In his markup of Randolph’s draft Constitution, Rutledge added, at the end of the list of enumerated powers, that Congress shall have a “right to make all Laws necessary to carry the foregoing Powers into Execut[ion].”¹² In a subsequent draft, James Wilson expanded Rutledge’s language to grant Congress power “to make all Laws that shall be necessary and proper for carrying into (full and complete) Execution (the foregoing Powers, and) all other powers vested, by this Constitution, in the Government of the United States, or in any Department or Officer thereof.”¹³

On August 6, 1787, the Committee of Detail reported its draft Constitution to the Convention, which contained the Necessary and Proper Clause in its final form.¹⁴ The Convention unanimously approved the Necessary and Proper Clause on August 20, 1787.¹⁵ There was no further substantial debate on the Clause during the Convention itself, although the three members of the Convention who declined to sign the Constitution—Randolph, George Mason, and Elbridge Gerry—all cited the breadth of the Necessary and Proper Clause among their objections to the document.¹⁶

Following the signing of the Constitution on September 17, 1787,¹⁷ the Constitution was submitted to the states for ratification pursuant to Article VII.¹⁸ During the ratification debates, opponents of the Constitution, such as Patrick Henry, strongly criticized the Necessary and Proper Clause.¹⁹ Antifederalists argued that the Clause would empower Congress to enact any law that it deemed to be necessary and proper, amounting to an open-ended, general grant of power for Congress to legislate on virtually any subject.²⁰

Federalist proponents of ratification maintained that the Necessary and Proper Clause had a more limited meaning. In the Federalist No. 33, Alexander Hamilton maintained that the Clause was merely “declaratory”: the “unavoidable implication” of “constituting a [f]ederal [g]overnment, and vesting it with certain specified powers.”²¹ The worst that could be said of the Clause, in Hamilton’s view, is that it was “chargeable with tautology or redundancy.”²² In the Federalist No. 44, James Madison agreed that even if the Constitution had been “silent” on this point, “there can be no doubt that all the particular powers, requisite as means of executing the general powers would, have resulted to the government . . . . No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authori[z]ed.”²³ If, as the Antifederalists feared, Congress should “misconstrue” the Clause and “exercise powers not warranted by its true meaning,” then “the executive and [the] judiciary” would act to stop the usurpation.²⁴

Following the ratification of the Constitution, debate over the meaning of the Necessary and Proper Clause resumed almost immediately when the First Congress moved to create a national bank.²⁵ Opposing the bank, Madison and Thomas Jefferson maintained that the Necessary and Proper Clause only empowered Congress to use “necessary” means, not means that were merely “convenien[t]” or “conducive” to the exercise of an enumerated power (such as the power to tax or borrow money).²⁶ Alexander Hamilton, supporting the constitutionality of the bank, argued that “necessary” in this context means no more than “needful, requisite, incidental, useful, or conducive to,” and that Jefferson had misconstrued “necessary” as if “the word absolutely, or indispensably, had been prefixed to it.”²⁷ President Washington, apparently persuaded by Hamilton’s view, signed into law the bill chartering the First Bank of the United States in 1791.²⁸

ArtI.S8.C18.3 Necessary and Proper Clause Early Doctrine and McCulloch v. Maryland

The Supreme Court was first called upon to construe the Necessary and Proper Clause in an 1805 case, United States v. Fisher, which concerned a law giving the United States priority over other creditors in the collection of debts.¹ Chief Justice Marshall held that this law was a necessary and proper means of executing Congress’s power to raise revenue and pay the debts of the United States.² Marshall rejected the argument that acts of Congress must be “indispensably necessary to give effect to a specified power,” reasoning that such a requirement would produce “endless difficulties.”³ Rather, under the Necessary and Proper Clause, “Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the [C]onstitution.”⁴

Marshall’s 1819 opinion in McCulloch v. Maryland⁵ expanded on Fisher to provide the canonical interpretation of the Necessary and Proper Clause.⁶ McCulloch resolved the long-simmering debate over whether Congress had the power to incorporate a national bank.⁷ Because the enumerated powers of Article I do not explicitly include the power to establish a bank, the issue in McCulloch was whether creating a national bank was a necessary and proper means of effectuating Congress’s powers “to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.”⁸

The decision hinged on the interpretation of the Necessary and Proper Clause. In McCulloch, the Court empathically rejected a narrow interpretation of “necessary” as limiting Congress’s powers to those that are “indispensably” or “absolutely” necessary to the exercise of a enumerated federal power.⁹ Adopting this strict reading, Marshall argued, would effectively hobble the operations of the Federal Government, “rendering [it] incompetent to its great objects” and “depriv[ing] the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.”¹⁰ In Marshall’s view, such a narrow construction was particularly inappropriate for “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”¹¹ The Court instead held that, in context, “necessary” was better understood to mean merely “conducive to” or “needful.”¹² As the unanimous opinion famously concluded: “Let the end be legitimate, 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 consist with the letter and spirit of the constitution, are constitutional.”¹³

ArtI.S8.C18.4 Nineteenth Century Evolution of Necessary and Proper Clause Jurisprudence

Following McCulloch, the Necessary and Proper Clause received relatively little attention on its own through the nineteenth and twentieth centuries,¹ although it served as an important component in many Commerce Clause cases.² For example, in its 1824 opinion in Gibbons v. Ogden,³ the Supreme Court addressed the scope of Congress’s power to regulate interstate commerce⁴ as supplemented by the Necessary and Proper Clause. Chief Justice Marshall concluded that the Commerce Clause empowers Congress “to prescribe the rule by which commerce is to be governed,” including “every species of commercial intercourse” among the states.⁵ Gibbons relied on the Necessary and Proper Clause as supporting a broad construction of commerce power,⁶ while at same time noting that the power did not reach purely intrastate commerce that “does not extend to or affect other States,” because such power “would be inconvenient, and is certainly unnecessary.”⁷

In a series of late nineteenth century opinions known as the Legal Tender Cases,⁸ the Supreme Court relied on McCulloch’s reading of the Necessary and Proper Clause to establish Congress’s power to issue paper money and make it legal tender for all debts, public and private.⁹ Although the Constitution expressly grants Congress the power “to coin Money,”¹⁰ this had been previously understood as limited to actual coinage (i.e., metal tokens).¹¹ Nonetheless, the Legal Tender Cases upheld the issuance of paper money and its status as legal tender as necessary and proper to Congress’s powers to tax, borrow money, coin money, and regulate interstate and foreign commerce.¹² These powers, taken together with the Necessary and Proper Clause, authorized Congress to “establish a national currency, either in coin or in paper, and to make that currency lawful money for all purposes.”¹³

ArtI.S8.C18.5 Modern Necessary and Proper Clause Doctrine

Building on the foundation established by McCulloch, modern Necessary and Proper Clause doctrine holds that the Clause permits any federal legislation that is “convenient” or “useful” to the exercise of federal power—that is, any “means that is rationally related to the implementation of a constitutionally enumerated power.”¹ The significance of this broad understanding of McCulloch on the powers of the Federal Government is difficult to overstate.² Much federal law rests on the foundation established by McCulloch, and practically every power of the Federal Government has been expanded in some degree by the Necessary and Proper Clause.³ Under the authority granted it by the Clause, Congress has adopted measures required to comply with treaty obligations,⁴ organized the federal judicial system,⁵ regulated intrastate matters that substantially affect interstate commerce,⁶ seized property pursuant to its taxing powers,⁷ and exercised the power of eminent domain to acquire private property for public use.⁸

Perhaps most notably, nearly all federal criminal law that applies outside of federal enclaves⁹ relies on the Necessary and Proper Clause.¹⁰ The Constitution expressly empowers Congress to punish only four crimes: counterfeiting, piracies, offenses against the law of nations, and treason.¹¹ The remainder of the federal criminal code—prohibitions on, for example, tax evasion, racketeering, mail fraud, and drug possession¹²—rests on a determination that criminalization is necessary to effectuate congressional power to regulate interstate commerce, collect taxes, establish post offices, spend for the general welfare, or some other enumerated federal power.¹³ For example, as necessary and proper to Congress’s authority under the Spending Clause, Congress may criminalize bribery of state and local officials receiving federal funds.¹⁴ Or, as necessary and proper to its power to regulate interstate commerce, Congress may prohibit intrastate cultivation and use of controlled substances such as illegal drugs.¹⁵

In United States v. Comstock, the Roberts Court addressed whether the Necessary and Proper Clause could support a federal law that provided for indefinite civil commitment of certain persons in federal custody who were shown to be “sexually dangerous,” authorizing detention of such prisoners even after they had served their sentences.¹⁶ The difficulty with the law, as a matter of congressional power, was that sexual dangerousness was defined broadly, without an explicit tie to any enumerated federal power,¹⁷ such as an impact on commerce. Moreover, the Court’s 2000 decision in United States v. Morrison foreclosed the argument that Congress could regulate general sexual violence pursuant to the Commerce Clause.¹⁸

The Court in Comstock upheld the civil commitment provision under the Necessary and Proper Clause. Writing for a five-Justice majority, Justice Stephen Breyer held that whatever enumerated power justified the prisoner’s crime of conviction¹⁹ permitted Congress “to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others,” including through post-sentence civil commitment.²⁰ This conclusion was justified by five factors:

(1) the breadth of the Necessary and Proper Clause, (2) the long history of federal

involvement in this arena, (3) the sound reasons for the statute’s enactment in light of

the Government’s custodial interest in safeguarding the public from dangers posed by

those in federal custody, (4) the statute’s accommodation of state interests, and (5) the

statute’s narrow scope.²¹

In 2013, the Supreme Court reaffirmed Comstock’s reasoning in United States v. Kebodeaux.²² Like Comstock, Kebodeaux concerned a federal regulation of sex offenders: the registration requirements of the 2006 Sex Offender Registration and Notification Act (SORNA).²³ Anthony Kebodeaux, a member of the U.S. Air Force, was convicted by a court martial of a sex crime in 1999; he served a three-month sentence and received a bad conduct discharge.²⁴ In 2007, Kebodeaux was convicted of violating SORNA when he moved from El Paso to San Antonio but failed to update his registration.²⁵

Although Congress did not enact SORNA until after Kebodeaux’s court martial and discharge, the Supreme Court upheld its application to Kebodeaux as necessary and proper to Congress’s power to “make Rules for the . . . Regulation of the land and naval Forces.”²⁶ Key to that conclusion was the Court’s finding that Kebodeaux’s release from federal custody was not “unconditional” because, as part of his original punishment by the court martial he was subject to an earlier federal statute, the Wetterling Act, which imposed “very similar” registration requirements to those of SORNA.²⁷ The Court thus framed the case as presenting a narrow question of whether Congress could later “modify” the Wetterling Act’s registration requirements through SORNA.²⁸ Applying the five Comstock factors, the Court concluded that the breadth of the Necessary and Proper Clause and the reasonableness of Congress’s registration requirements justified SORNA’s application to Kebodeaux.²⁹

Although Comstock and Kebodeaux embrace a broad, relatively deferential understanding of the Necessary and Proper Clause, the Supreme Court has at times taken a narrower view, especially in cases involving independent federalism concerns.³⁰ In the Commerce Clause context, for example, the Rehnquist Court found the Necessary and Proper Clause insufficient to support laws prohibiting possession of guns near schools³¹ and prohibiting gender-motivated violence,³² despite arguments that these activities have an aggregate impact on interstate commerce.

Similarly, just two years after Comstock, five Justices separately concluded that the “individual mandate” provision of the Affordable Care Act (ACA), which required individuals to purchase insurance or pay a tax penalty, exceeded Congress’s power under the Commerce and Necessary and Proper Clauses.³³ In National Federation of Independent Business v. Sebelius (NFIB), Chief Justice Roberts’s opinion reasoned that the individual mandate was not an “essential component” of the ACA’s health insurance reforms because it operated to “vest[ ] Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power” by compelling individuals to engage in commerce.³⁴ Therefore, unlike the law in Comstock, the authority Congress attempted to exercise in NFIB was neither “narrow in scope” nor “incidental” to the exercise of Commerce Clause power.³⁵ However, a majority of the Court ultimately held that the individual mandate was authorized under Congress’s power to lay and collect taxes.³⁶

ArtI.S8.C18.6 Meaning of Proper

In general, Supreme Court doctrine has afforded relatively little attention to whether the word “proper” as used in the Necessary and Proper Clause independently limits Congress’s authority.¹ Indeed, it is not clear that “proper” imparts any limitation on Congress’s power beyond the McCulloch test itself, which requires a law to both be “appropriate” and “consist[ent] with the letter and spirit of the constitution.”² At the least, to be “proper,” an act of Congress must not violate another express or implied constitutional provision, including the system of dual state-federal sovereignty established by the Constitution.³ For example, the Court has held that the Tenth Amendment operates to restrain the scope of the Necessary and Proper Clause, holding that an otherwise valid law that violates principles of state sovereignty is not a “proper” exercise of federal power.⁴

ArtI.S8.C18.7.1 Overview of Congress’s Investigation and Oversight Powers

Congress’s power to conduct investigations stands on equal footing with its authority to legislate and appropriate.¹ Although the “power of inquiry” was not expressly provided for in the Constitution, it has nonetheless been acknowledged as “an essential and appropriate auxiliary to the legislative function” derived implicitly from Article I’s vesting of “legislative Powers” in the Congress.² This implied constitutional prerogative to gather information related to legislative activity is both critical in purpose, as Congress “cannot legislate wisely or effectively in the absence of information,” and extensive in scope, as Congress is empowered to obtain pertinent testimony and documents through investigations into nearly any matter.³ Included within the scope of the power is the authority to initiate investigations, hold hearings, gather testimony or documents from witnesses, and, in situations where either a government or private party is not forthcoming, compel compliance with congressional requests through the issuance and enforcement of subpoenas.

While Congress’s investigative tools can be used to achieve a number of different purposes, congressional practice suggests that legislative inquiries primarily serve to either gather information valuable for considering and producing legislation (what may be called the self-informing or legislative-informing function)⁴ or to ensure that existing laws are being properly administered (what may be referred to as the oversight function.)⁵ Although functionally distinguishable, the self-informing and oversight functions often merge during the conduct of significant investigations.

In the absence of explicit constitutional text, the scope of the investigatory power has been molded and defined primarily by congressional practice, negotiations between the political branches, and opinions of the Supreme Court. The Supreme Court has only rarely engaged in any significant discussion of Congress’s investigatory power, and in fact has only once issued an opinion directly addressing an investigative oversight conflict between Congress and the Executive Branch.⁶ A variety of factors contribute to the reduced judicial role in this area, including legal principles of judicial restraint and the separation of powers. But at least historically, the chief constraint appears to be the infrequency in which cases involving the investigatory power have been adjudicated.⁷ As a general matter, the Judicial Branch generally has become involved in subpoena disputes in only three classes of cases: (1) when a party is subject to a contempt proceeding for failure to comply with congressional demands;⁸ (2) when the House or Senate itself initiates a lawsuit in an attempt to enforce a subpoena—though the Supreme Court has never heard such a case;⁹ or (3) when a subpoena seeks an individual’s documents from a third party, and the individual brings suit to block the third party from complying with the subpoena.¹⁰ The majority of cases have historically come from the first category, arising either in the context of a criminal prosecution for contempt of Congress, or a habeas proceeding stemming from a detention carried out pursuant to an exercise of Congress’s inherent contempt power.¹¹ The relative dearth of jurisprudence means that historical practice, especially Congress’s views of the reach of its own authority established through hundreds of years of investigations, plays a substantial role in establishing the outer bounds of the investigatory power.

Although Supreme Court decisions in this area are limited, they illuminate the basic constitutional foundation of Congress’s investigatory power and establish key legal limitations on its exercise. The Court’s early jurisprudence began with a focus on establishing the source of the investigatory power before considering the power’s scope.¹² In that vein, the Court established that the authority to conduct investigations was implied from the “legislative power” vested in Congress by Article I of the Constitution, but only to the extent that an inquiry actually served a “legislative purpose.”¹³ By the mid-twentieth century, judicial recognition of the investigatory power had been well established, and the Court’s focus shifted to legal limitations on congressional inquiries, generally in the context of the tension between congressional investigations and the individual rights of private citizens.¹⁴ These judicially identified limitations on Congress’s power of inquiry emanated principally from the Bill of Rights, including the First and Fifth Amendments, as well as from the internal rules of the House and Senate, which can act as self-imposed constraints on the investigatory power. Intervention by the Supreme Court into investigative disputes has generally been confined to scenarios in which Congress is seeking information from a private citizen, rather than a government official. Trump v. Mazars, decided in 2020, was the first time the Supreme Court directly addressed an interbranch investigatory conflict. Even then, the case was technically brought by President Donald Trump in his private rather than official capacity, though the Court chose to treat the conflict as one between the branches.¹⁵ Instead, the historical reality has generally been that inter-branch investigative conflicts are resolved through an informal tug-of-war between the political branches rather than through adjudication by the courts.¹⁶

ArtI.S8.C18.7.2 Historical Background on Congress’s Investigation and Oversight Powers

The power to conduct investigations and oversight has long been considered an essential attribute of legislative bodies. In England, Parliament’s protean investigatory powers first emerged in connection to its authority to protect the sanctity of the legislative body by punishing for contempt, a practice that can be traced back to at least 1548.¹ Through a contempt proceeding, the legislative body can detain, imprison, and fine those that either obstruct Parliament’s operation, refuse to comply with its lawful orders, or threaten its prerogatives.² These roots remain apparent today, as legal discussions of legislative investigatory powers in the United States are consistently and intimately intertwined with the contempt power.³

By the early seventeenth century, Parliament unmistakably recognized its power to investigate as the House of Commons began requiring, on a case by case basis, the attendance of witnesses or the production of documents in furtherance of the body’s “duty to inquire into every Step of publick management . . . .”⁴ Eventually, as gathering information relating to both the passage of new laws and the administration of existing laws became an apparent and essential ingredient of the legislative process, compulsory investigatory powers were provided on a more general and permanent basis to established parliamentary committees of inquiry.⁵ This overarching historical notion of the power of inquiry as a necessary component part of the legislative power was transported to America, and incorporated into the practice of colonial governments, and, after independence, state governments.⁶

It is important to note that while the antecedent history of the English Parliament may be relevant to understanding the powers that the Framers of the U.S. Constitution understood the new national legislature to have, it is clear that there are limits to the usefulness of parliamentary precedents in defining Congress’s investigatory powers due to significant distinctions between the two legislative bodies. As the Supreme Court has repeatedly reaffirmed, Parliament’s investigatory and contempt powers were derived from the bodies’ authority to exercise a “blend[ ]” of both legislative and judicial powers.⁷ Congress, under the American system’s separation of powers among three branches of government, exercises no judicial power.⁸ Thus, unlike Parliament, any authority to investigate and subsequently enforce its orders must rest solely on legislative authority provided to the body by the Constitution.

The Constitutional Convention saw almost no discussion of Congress’s power to conduct oversight and investigations, although individual delegates to the Convention appear to have understood Congress to possess “inquisitorial” powers.⁹ A proposal to provide Congress explicitly with the power to punish for contempts—a power often used, and at times “abused,” by Parliament as a means to effectuate its investigatory powers—was made, but not acted upon.¹⁰ Nevertheless, it is likely that the general view of Convention delegates was that an express enumeration of the power of inquiry or the power to punish for contempt was unnecessary. The Framers’ conception of legislative power, based on centuries of consistent practice by both Parliament and colonial legislatures, included the ability to gather information relevant to the conduct of the House and Senate’s legislative functions.¹¹ Congressional practice, executive acquiescence and acknowledgement, and judicial precedent all confirm the view that the power to investigate is implicit in the legislative power.

ArtI.S8.C18.7.3 Congress’s Investigation and Oversight Powers (1787–1864)

Congress exhibited a robust view of its own investigatory powers from the very outset, especially in regard to the legislature’s obligation to oversee the Executive Branch.¹ The first session of the First Congress saw the House establish a special committee to investigate Robert Morris’s conduct as Superintendent of Finance under the Articles of Confederation.² The House then established an important special investigating committee in 1792 for the purpose of inquiring into Major General Arthur St. Clair’s disastrous military excursion into the Northwest Territory in which nearly 700 federal troops were killed by the Western Confederacy of American Indians.³ The mere act of authorizing such a committee set an important precedent, in that adoption of the resolution was preceded by a debate over whether it was appropriate, and indeed constitutional, for the House to investigate the matter, or whether it was preferable to urge the President to carry out the inquiry.⁴ Although it was asserted by some that the House lacked authority to inquire into Executive operations, that position was defeated and Congress established an investigating committee with clear authority to “call for such persons, papers and records as may be necessary to assist their inquiries.”⁵ The investigation itself also established important precedents for Congress’s authority to gather information from the Executive Branch, including in relation to sensitive military matters. After some discussion within Washington’s cabinet of the President’s authority to withhold requested information from Congress, the special committee obtained documents from both the War Department and the Treasury Department as well as testimony from cabinet officials Henry Knox and Alexander Hamilton.⁶

Congress also acted swiftly to use federal law and internal rules to strengthen its investigatory powers. In 1798, Congress enacted a statute recognizing its powers not only to obtain evidence through testimony, but also to do so from witnesses under oath.⁷ The statute specifically authorized the President of the Senate, the Speaker of the House, and a chairman of a select committee to administer oaths to witnesses testifying before Congress.⁸ In addition, both the House and Senate delegated to ad hoc select committees the authority to call for papers or persons beginning as early as the late eighteenth century.⁹ However, those early years saw Congress use compulsory process sparingly, especially for purposes of informing itself when considering legislation.¹⁰

Congress’s relatively broad understanding of its own investigatory powers continued into the nineteenth century as both the House and Senate engaged in ongoing oversight of the Executive Branch. A variety of inquiries set important precedents establishing Congress’s authority to inquire into the expenditure of appropriated funds, activities of state officials, and operations of the military and post office.¹¹

It was not until 1821 that the Supreme Court issued its first notable opinion in this area. That opinion, Anderson v. Dunn, dealt not with Congress’s power to conduct the type of oversight with which it had been engaged, but instead with the related question of whether the House possessed the power to punish a private citizen for attempting to bribe a Member.¹² The Anderson opinion recognized the House’s authority to defend its own powers and prerogatives by punishing certain contemptuous acts committed against the body, despite the absence of a constitutional provision granting the body such power.¹³ The contempt power was “derived from implication” in Article I as essential to the self-preservation of all legislative bodies.¹⁴ The Court said nothing about Congress’s general investigatory or oversight powers, but Anderson marks the Court’s first clear acknowledgment of implied legislative powers. That Congress holds certain implied powers necessary to the functioning of a deliberative legislative body is a principle that would later lead to the judicial affirmation of the wider investigatory and oversight powers that Congress had already asserted in practice.¹⁵

In the meantime, the House and Senate continued to engage in major investigations of the Executive Branch without intervention or interference from the courts. In 1832, the House established a select committee to investigate the operations of the federally chartered, but privately owned Second Bank of the United States.¹⁶ The investigation, which inquired into both the operation of the Bank and whether the Bank’s soon-to-expire charter should be renewed, represents an example of an investigation that blended both the oversight and informing functions.¹⁷ The majority report, after taking testimony from a variety of former and current bank officers and employees and reviewing the Bank’s accounting books, found that the Bank had violated its charter on a number of occasions and specifically recommended that the Bank not be reauthorized.¹⁸

The House’s investigation was not undertaken without dissent. Former President and then-Representative John Quincy Adams disagreed with both the committee majority’s conclusion and the way in which it carried out its investigation. In his own minority report, Adams criticized the committee’s focus on the actions of specific officers and employees of the Bank rather than the Bank’s general operation—calling the investigation a “trial” that invaded both the “sanctuary of private life” and the judicial power.¹⁹

Adams’ concerns over Congress’s ability to inquire into personal conduct of private citizens were reflected in a Senate investigation into John Brown’s raid on Harpers Ferry. Brown, an ardent and at times violent abolitionist, had led an attack on a federal arsenal in an effort to stimulate an armed slave uprising.²⁰ Following the failed attack, the Senate adopted a resolution establishing a select committee to investigate the facts of the raid, including whether Brown received financial support from other conspirators and whether legislation was necessary to prevent similar acts from occurring in the future.²¹ The committee attempted to compel testimony from a number of individuals who were suspected of criminal involvement in the raid, but was unable to acquire testimony in a number of instances. One witness, Thaddeeus Hyatt, refused to testify, asserting that he had no constitutional obligation to do so because the “inquisitorial” investigation represented an exercise of judicial rather than legislative power.²² Hyatt’s refusals sparked a debate in the Senate, with a vocal minority of members arguing that the committee’s assumption of judicial functions violated the separation of powers.²³ Ultimately, it appears that concerns expressed in the Senate over congressional inquiry into private conduct gave shelter to witnesses who refused to comply with committee investigative demands, resulting in what has been characterized as a failed and highly partisan investigation.²⁴

ArtI.S8.C18.7.4 Congress’s Investigation and Oversight Powers (1865–1940)

The end of the nineteenth and first half of the twentieth centuries saw the Supreme Court consider the question of Congress’s power to investigate private conduct that the Adams report and Harpers Ferry investigation had placed into public view. In considering that question, seminal cases such as Kilbourn v. Thompson,¹ In re Chapman,² and Marshall v. Gordon³ developed an enduring and essential limit on Congress’s investigatory authorities: the principle that Congress’s implied powers of investigation, being derived from the express delegation of legislative power to Congress, extend only to those inquiries that can be said to “aid the legislative function” or that serve a “legislative purpose.”⁴

The 1880 case of Kilbourn v. Thompson represents the Court’s first and arguably most restrictive assessment of Congress’s general investigatory powers. Kilbourn involved a contempt action arising from a private citizen’s refusal to testify before a special House committee established to investigate the bankruptcy of a company to which the government was a creditor.⁵ In addition to placing certain limits on Congress’s exercise of its contempt power,⁶ the opinion also contained the Court’s first discussion of Congress’s authority to compel the attendance of witnesses during an investigation.⁷ The opinion connected that power to the exercise of other constitutional powers. The Court noted that the House and Senate had an “undoubted right to examine witnesses and inspect papers” and “the right to compel the attendance of witnesses, and their answer to proper questions,” either when exercising the powers of impeachment and removal or to judge the election and qualification of their own members.⁸

Outside those areas, however, the Kilbourn Court held that Congress could only compel production of testimony or documents when “required in a matter into which that House has jurisdiction to inquire.”⁹ With regard to the bankruptcy investigation at issue, the Court ruled that the House lacked jurisdiction, as neither house “possesses the general power of making inquiry into the private affairs of the citizen.”¹⁰ The Court viewed the committee’s inquiry as a “fruitless investigation into the personal affairs of individuals” that could “result in no valid legislation on the subject to which the inquiry referred” and thus was not in aid of the legislative function.¹¹ Further evidence that the investigation was not legislative in nature, the Court reasoned, lay in the fact that any congressional investigation into purely private affairs with implications for private rights “assumed a power” that was “in its nature clearly judicial.”¹²

Similarly, in Marshall v. Gordon, the Supreme Court held that a House committee had no legislative purpose in punishing, through contempt, a federal district attorney for writing and publishing a “defamatory and insulting” letter criticizing Congress.¹³ The Court held that the contempt power extends only as far as is “necessary to preserve and carry out the legislative authority given.”¹⁴ This includes, the Court reasoned, responding to acts that “in and of themselves inherently obstruct or prevent the discharge of legislative duty” such as “refusing to obey orders to produce documents or give testimony which there was a right to compel.”¹⁵ An ill-tempered letter, on the other hand, did not sufficiently obstruct Congress’s ability to exercise its powers to trigger contempt.¹⁶

The contempt actions that gave rise to Anderson, Kilbourn, and Marshall were undertaken pursuant to the House and Senate’s implied authority to unilaterally punish contemptuous conduct.¹⁷ These contempt proceedings took place before the House or Senate.¹⁸ However, in order to enforce congressional investigatory powers “more effectually[,]” Congress had enacted a criminal provision in 1857 that made it a misdemeanor to willfully fail to comply with a congressional subpoena for testimony or documents.¹⁹ Violations were certified to the Executive Branch for prosecution, rather than proceeded against within the Legislative Branch.

The Supreme Court upheld the contempt statute against a constitutional challenge in In re Chapman as “necessary and proper for carrying into execution the powers vested in Congress and in each House thereof.”²⁰ The Chapman decision also contributed to development of the “legislative purpose” concept by clarifying that though some connection to the legislative function is necessary to justify exercising compulsory investigative powers, Congress is not required to specifically “declare in advance” the purpose of an inquiry at the outset.²¹

The inquiry into the Teapot Dome scandal that arose during the Administration of Warren G. Harding was one of Congress’s most significant and wide ranging investigations.²² The investigation involved both private and governmental conduct and allowed Congress to display the full panoply of its investigative tools. The inquiry began as a result of accusations that the Secretary of the Interior, in return for some pecuniary benefits, had made a secret arrangement to lease the Teapot Dome oil reserves in Wyoming to personal friends who led major private oil companies, without required competitive bidding.²³ The subsequent Senate investigation—running from 1922 to 1923—uncovered pervasive corruption throughout the highest levels of the Executive Branch, ultimately leading to the downfall of a variety of government officials and oil executives.²⁴ The Senate not only held hearings, issued subpoenas to compel the production of testimony and documents, and published reports, but also approved resolutions calling for the President to remove certain officials; confirmed the appointment of a special counsel to investigate criminal wrongdoing independently; and referred matters to the Executive Branch for criminal prosecution.²⁵

The Teapot Dome investigation also gave rise to the important decisions of McGrain v. Daugherty and Sinclair v. United States.²⁶ McGrain represents one of the Supreme Court’s most significant and detailed discussions of the scope of Congress’s investigatory powers and is likely the historical high-water mark of the judicial vision of Congress’s power.²⁷ The decision was also the first time that the Court explicitly recognized each house’s ability to compel testimony.²⁸ The case arose from a Senate investigation into the alleged failure of the Attorney General to prosecute certain federal violations uncovered by the preceding Teapot Dome investigation.²⁹ After Mallie Daugherty, the brother of the Attorney General and president of an Ohio bank, refused to comply with a subpoena for testimony, the Senate ordered him detained pursuant to its own contempt power. Daugherty’s challenge to his detention ultimately was rejected by the Supreme Court, which upheld the chamber’s authority to arrest and detain a witness in order to obtain information for legislative purposes. The McGrain opinion found “[t]he power of inquiry—with process to enforce it is an essential and appropriate auxiliary to the legislative function.”³⁰ In support of its conclusion, the Court noted that such a power had been recognized by legislative bodies consistently through American history, from colonial and state legislatures before adoption of the Constitution to both the House and Senate after.³¹ In an oft quoted passage, the Court reasoned that the practicalities of investigative inquiries sometimes require compulsion:

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 do 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.³²

The McGrain opinion also clearly established that Congress’s oversight and informing functions are employed in aid of its legislative function, and thus represent legitimate justification for the exercise of compulsory investigative powers.³³ With regard to the informing function, the Court suggested there existed a “presumption” that an investigation is undertaken to aid the Congress in legislating, and also reaffirmed that an “express avowal” of the legislative goal “was not indispensable.”³⁴ With regard to the oversight function, the Court gave its imprimatur to the general purpose of the committee investigation, that of overseeing “the administration of the Department of Justice,” because the activities of Executive Branch agencies “are all subject to regulation by congressional legislation.”³⁵ McGrain firmly and explicitly entrenched the investigatory powers that had been recognized and employed by the House and Senate since at least 1792.

The second opinion arising from the Teapot Dome investigation was Sinclair v. United States.³⁶ That case involved a prosecution for criminal contempt of Congress against an oil executive, who had received an illegal lease from the government, for his refusal to comply with a committee subpoena for testimony.³⁷ Like previous decisions, the case again centered on whether an investigation into private conduct could be “in aid of legislation.”³⁸ Although the Court reaffirmed that neither house “possesses the general power of making inquiry into the private affairs of the citizen,” it nevertheless upheld the contempt conviction and the Senate’s exercise of its investigatory powers, holding that the authority to investigate extends to “matters affecting the United States . . . as well as to those having relation to the legislative function.”³⁹ It was clear, the Court reasoned, that Congress had power to investigate how and to whom the Executive Branch leased oil reserves. The opinion distinguished Kilbourn, observing that Congress’s inability to inquire into private conduct applies only when an investigation is not a matter of federal concern, but rather relates “merely or principally [a] personal or private affair.”⁴⁰

The Supreme Court’s subsequent opinions further refined the legislative purpose requirement, generally in the direction of expanding Congress’s realm of interest. For example, in Barenblatt v. United States, the Court observed that the legislative role requires attention to a “whole range of national interests,” reflecting a corresponding power of inquiry that “is as penetrating and as far reaching as the potential power to enact and appropriate under the Constitution.”⁴¹ The Court has also generally deferred to Congress’s articulated purpose, effectively creating a presumption in favor of congressional authority when an investigation is related to a constitutional purpose.⁴² The Court, for example, will not inquire into “the motives which spurred the exercise of” the investigative power.⁴³ Even the existence of bad intent will not “vitiate” an otherwise valid investigation.⁴⁴ But, the Court has warned that because the exercise of investigative powers by a committee is based upon authority delegated to it by the parent body, the parent body should clarify those committee powers by articulating the committee’s jurisdiction and purpose “with sufficient particularity.”⁴⁵ As the Court has noted “the more vague the committee’s charter, the greater becomes the possibility” that the committee will act outside the confines of a legislative purpose.⁴⁶

ArtI.S8.C18.7.5 Congress’s Investigation and Oversight Powers (1940–1970)

Whereas the Supreme Court’s early cases on Congress’s investigatory powers almost exclusively focused on the source and scope of Congress’s implied authorities by requiring that a legislative purpose exist in any congressional inquiry, the 1950s and 1960s saw the Court develop two additional categories of limits on Congress’s investigative powers. First, the Court began to enforce Congress’s own self-imposed internal constraints, for example by requiring committees to stay within their delegated jurisdiction and comply with their own committee rules.¹ And second, the Court enforced constraints emanating from the personal rights of private citizens secured by the Bill of Rights.²

Many of the disputes that were ultimately heard by the Supreme Court during this time period stemmed from House and Senate investigations into “the threat of subversion of the United States Government,” especially from communist infiltration and influence.³ These investigations, and subsequent contempt actions, were generally initiated by the House Un-American Activities Committee (HUAC) or other committees targeting communist activity. Although the Court has characterized this period as a “new phase of legislative inquiry” involving “broad-scale intrusion into the lives and affairs of private citizens,” it is clear that congressional inquiry into private conduct was not in and of itself a new development.⁴ Nevertheless, perhaps because actions taken by Congress and its committees in this period clearly implicated individual constitutional rights such as the privilege against self-incrimination and free speech, the Court more heavily scrutinized Congress’s use of its investigatory powers.⁵

The uptick in Supreme Court review of congressional inquiries from earlier periods may also have been partly due to an overall increase in investigative activity following enactment of the Legislative Reorganization Act of 1946.⁶ The 1946 Act was the result of a report by the Joint Committee on the Reorganization of Congress that recommended that Congress abandon its long-standing practice of establishing special committees to carry out investigations and instead that all House and Senate standing committees “be directed and empowered to carry on continuing review and oversight of legislation and agencies within their jurisdiction” and be given subpoena power.⁷ The Act ultimately veered slightly from the Joint Committee’s recommendation, delegating subpoena power to all standing committees of the Senate, but only the Un-American Activities Committee in the House. The Act further mandated that each standing committee in both chambers “exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee.”⁸

ArtI.S8.C18.7.6 Rules-Based Limits of Congress’s Investigation and Oversight Powers

In exercising its investigatory powers, Congress is subject to its own rules and, in particular, rules defining committee jurisdictions. The Supreme Court has enforced House and Senate internal rules to limit the exercise of investigatory authority as shown by cases such as Yellin v. United States, Gojack v. United States, and United States v. Rumely.¹ These cases stand for the proposition that a congressional committee lacks authority to compel compliance with investigative demands when it acts outside its jurisdiction or fails to comply with its own rules.

In Yellin, the Supreme Court overturned a contempt conviction stemming from a witness’s refusal to answer questions in a public hearing.² The witness had argued that the conviction was improper because the committee had failed to comply with its own rules regarding the availability of closed sessions.³ Those rules expressly required that in considering whether to close a hearing, the committee consider the possible injury to the witness’s reputation that may result from a public hearing.⁴ The Court held that in exercising investigative powers, a committee may be “held to observance of its rules.” Finding that the committee had not given due consideration to the witness’s requests for a private hearing, the Court overturned the contempt conviction.⁵ The Court reached a similar conclusion in Gojack.⁶ There a HUAC rule required that all “major investigations” be initiated only with the majority approval of the Committee.⁷ The underlying investigation that gave rise to the contempt prosecution had not been authorized, and thus, the Court reversed the conviction.⁸

Nor may a committee exercise compulsory investigative powers in connection to matters outside its jurisdiction.⁹ Committee jurisdiction acts as a fundamental limit on investigative activity as it is directly tied to the “source” of the committee’s authority: the delegation from the parent body.¹⁰ A congressional committee, the Supreme Court has declared “is restricted to the missions delegated to it by the parent body, and” “no witness can be compelled to make disclosures on matters outside that area.”¹¹

In Rumely, the Court affirmed a reversal of a contempt conviction of a defendant who had failed to comply with a House select committee’s subpoena on the basis that the committee was operating outside the jurisdiction delegated to it by the House.¹² The defendant in Rumely, the secretary of an organization that published and sold books of “particular political tendentiousness,” had refused to comply with a committee subpoena for the names of those persons or groups who made bulk purchases from the organizations.¹³ The resolution establishing the select committee, which the Court viewed as “the controlling charter of the committee’s powers,” had authorized the committee to investigate “lobbying activities intended to influence . . . legislation.”¹⁴ The Court interpreted “lobbying activities” to extend only to “representation made directly to the Congress” and thus concluded that the committee had no authority to investigate or enforce a subpoena against a witness who had sought only to influence public opinion.¹⁵ In adopting this interpretation of “lobbying activities,” the Court expressly stated that it gave the committee’s jurisdiction a “more restricted scope” in part so as to avoid the possibility that enforcement of the subpoena would violate the witness’s First Amendment right to engage in political speech.¹⁶ The Court has followed a similar approach in subsequent cases. At times, it has adopted a narrow interpretation of a committee’s jurisdiction or the scope of a committee investigation to avoid the possibility of a constitutional conflict on the grounds that “[p]rotected freedoms should not be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a particular legislative need.”¹⁷

ArtI.S8.C18.7.7 Constitutional Limits of Congress’s Investigation and Oversight Powers

Congress’s investigatory powers are limited by the constitutional protections accorded to individuals under the Bill of Rights. In Watkins v. United States, the Supreme Court observed that:

It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts

to obtain the facts needed for intelligent legislative action. It is their unremitting

obligation to respond to subpoenas, to respect the dignity of the Congress and its

committees and to testify fully with respect to matters within the province of proper

investigation. This, of course, assumes that the constitutional rights of witnesses will

be respected by the Congress as they are in a court of justice. The Bill of Rights is

applicable to investigations as to all forms of governmental action.¹

Because a congressional inquiry is part of “lawmaking,” a congressional committee engaged in an investigation generally must observe applicable constitutional restrictions and respect validly asserted constitutionally-based privileges.² Although not all provisions of the Bill of Rights are directly relevant to a congressional investigation, it is apparent that many are, with the First and Fifth Amendments providing the principle limitations on Congress’s exercise of it powers.³

The Court has clearly established that First Amendment protections apply to congressional investigations.⁴ Compelling a witness to testify “against his will, about his beliefs, expressions, or associations is a measure of governmental interference” with the witness’s free speech rights.⁵ However, the actual application of these protections in a congressional investigation is an “arduous and delicate task” that involves balancing Congress’s interest in obtaining information with the witnesses’ interest in personal privacy.⁶ In Watkins, the Court made clear that in considering a First Amendment challenge in a congressional inquiry “[t]he critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness.”⁷ In short, the extent to which the First Amendment can be used as a shield against a congressional inquiry depends on the strength of the committee’s legislative purpose.⁸

This balancing test was put to use in Barenblatt v. United States.⁹ The opinion, along with subsequent consistent decisions, suggests that a First Amendment defense to compulsory congressional process has generally had little success.¹⁰ In Barenblatt, a college professor had been convicted of criminal contempt of Congress for his refusal to answer, on First Amendment grounds, questions before a HUAC subcommittee relating to his Communist Party involvement.¹¹ The Court disagreed with the professor’s position, reasoning that the First Amendment does “not afford a witness the right to resist inquiry in all circumstances.”¹² Instead, the Court reasoned, “[w]here First Amendment rights are asserted to bar government interrogation resolution of the issue always involved a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.” After determining that Congress has “wide power to legislate in the field of Communist activity in this Country,” the Court characterized the government interest at play as one of “self-preservation” as one of the central tenets of the Communist Party was the violent overthrow of the American government.¹³ In contrast, the opinion made little mention of the witnesses’ First Amendment rights, but in weighing the competing interests, the Barenblatt opinion concluded that the balance “must be struck in favor of the government.”¹⁴

Witnesses also have a right to invoke the Fifth Amendment privilege against self-incrimination during a congressional investigation.¹⁵ The privilege’s applicability was explicitly established in a group of cases released on the same day in 1955.¹⁶ Each involved a witness who had refused to answer questions before the HUAC by relying on their Fifth Amendment privilege.¹⁷ In each case, the privilege was rejected by the HUAC and the witness later prosecuted for criminal contempt of Congress. The Court overturned all three convictions, simultaneously establishing important foundational principles for the scope of the privilege in a congressional proceeding as well as standards for invocation and waiver of the privilege.¹⁸

In pertinent part, the Fifth Amendment establishes that “no person . . . shall be compelled in any criminal case to be a witness against himself . . . ”¹⁹ Although the Amendment’s protection expressly refers to “criminal cases[s],” the Court has nevertheless found the privilege against self-incrimination to be available to a witness appearing before a congressional committee.²⁰ Once properly invoked, the privilege protects a witness from being compelled to provide Congress with statements that may directly or indirectly furnish evidence which could be used against the witness in a subsequent criminal prosecution or from being punished for their refusal to respond to committee inquiries.²¹ The Court has recognized the potential consequences of such a broad protection, but has repeatedly confirmed that the Fifth Amendment must be regarded as “a privilege of great value, a protection to the innocent though a shelter to the guilty, and a safeguard against heedless, unfounded or tyrannical prosecutions.”²²

In Quinn v. United States, the Court adopted a relatively lenient standard for determining whether the Fifth Amendment protection against self-incrimination was properly invoked during a congressional proceeding.²³ That opinion held that invocation “does not require any special combination of words.”²⁴ Nor is any “ritualistic formula or talismanic phrase” essential to invoke the privilege.²⁵ Rather, “[i]f an objection to a question is made in any language that a committee may reasonably be expected to understand as an attempt to invoke the privilege, it must be respected [ ] by the committee . . . .”²⁶ So long as the witness’s statement places the committee “on notice” of a potential claim of privilege, the invocation has been considered adequate.²⁷

The Court’s approach to invocation of the privilege in an investigative proceeding stems largely from the strong presumption against waiver of the privilege. This presumption was apparent in Emspak v. United States where after invoking the Fifth Amendment in response to questions from a committee relating to his alleged communist associations and affiliations, the witness was directly asked: “Is it your feeling that to reveal your knowledge . . . would subject you to criminal prosecution?”²⁸ The witness responded “No. I don’t think this committee has a right to pry into my associations.”²⁹ The government argued that the witness’s assertion that he did not believe his response would lead to potential criminal liability constituted a waiver of the Fifth Amendment privilege, but the Court disagreed, noting that the witness’s statement was not “sufficiently unambiguous to warrant finding a waiver . . . ”³⁰ To hold otherwise, the Court concluded, would contravene “oft repeated admonition that the courts must ‘indulge every reasonable presumption against waiver of fundamental constitutional rights.”³¹

Finally, the requirements of the Due Process Clause of the Fifth Amendment,³² in conjunction with the required elements of the criminal contempt statute,³³ limit Congress’s ability to enforce compliance with subpoenas through contempt. Perhaps the leading case on what is known as the “pertinence” requirement is Watkins v. United States.³⁴ The Watkins opinion recognized the extraordinary breadth of the investigatory power, but also made clear that the power must accommodate the constitutionally guaranteed rights and privileges of witnesses, including those stemming from the Due Process Clause. In Watkins, the witness had been convicted of criminal contempt of Congress after refusing to answer questions before the HUAC on the grounds that the questions asked related to matters “outside the proper scope of [the] committee’s activities.”³⁵ In overturning the conviction, the Court noted that criminal defendants must be accorded the right, stemming from the Due Process Clause, to have adequate knowledge and notice—“through a sufficiently precise statute”—of the “standard of criminality” for any offense.³⁶ Under the criminal contempt statute, that standard of criminality includes the determination that the witness has refused to give an answer “pertinent to the question under inquiry.”³⁷ Therefore, the witness must have knowledge of what subjects are pertinent to the committee inquiry with the degree of “explicitness and clarity that the Due Process Clause requires.”³⁸ The Court found the HUAC authorizing resolution, the statements for the record made by the Chair and other HUAC members, and the “nature of the proceedings” all failed to establish with adequate clarity the scope of the matter under inquiry and the pertinence of the questions propounded thereto.³⁹ In such a scenario, the Court found that “fundamental fairness demands that no witness be compelled to make such a determination with so little guidance.”⁴⁰

ArtI.S8.C18.7.8 Watergate, Church, and Pike Investigations of Congress

The beginning of the modern era of congressional oversight is arguably marked by a pair of historically significant investigations into core components of Executive power. In 1973 the Senate approved a resolution establishing the Senate Select Committee on Presidential Campaign Activities to investigate various aspects of the 1972 presidential campaign including the break in of the Democratic National Committee headquarters at the Watergate Office Building.¹ The Senate Committee engaged in a series of hearings and received testimony from a number of President Richard Nixon’s closest advisers.² These hearings uncovered the existence of a taping mechanism installed in the White House, which led to a major confrontation between the President, Congress, and the courts over appropriate access to confidential presidential communications.³ The Senate investigation, in conjunction with an investigation spearheaded by the Watergate Special Prosecutor eventually led to an impeachment investigation in the House and, ultimately, President Nixon’s resignation from office.⁴

The Watergate investigation was followed up by the 1975 House and Senate investigations into potential abuses by the U.S. intelligence community. The Senate Select Committee to Study Government Operations with Respect to Intelligence Activities (known as the Church Committee after its Chairman, Senator Frank Church)⁵ and the House Select Intelligence Committee (known as the Pike Committee after its chairman, Congressman Otis Pike)⁶ held both private and public hearings inquiring into a variety of secret programs, including some related to the potential assassination of foreign leaders, run by the Central Intelligence Agency, National Security Agency, and Federal Bureau of Investigation. The Committees’ work had a significant influence on the Executive Branch, ultimately resulting in President Gerald Ford taking actions to reform and reorganize the Intelligence Community.

The Watergate, Church, and Pike investigations not only uncovered Executive Branch abuses, but also helped Congress inform itself for legislative enactments to correct problems that had been uncovered by the Committees. The experience of the Watergate investigation, for example, arguably led to campaign finance reform and the Ethics in Government Act, while the findings of the Church and Pike Committees led to enactment of Foreign Intelligence Surveillance Act.⁷ Congress also made internal changes to increase legislative oversight of intelligence activities by establishing select committees on intelligence in both the House and Senate.⁸

ArtI.S8.C18.7.9 Congress’s Investigatory Powers Generally

In 1975, the Supreme Court issued the first of only two opinions on Congress’s investigatory powers in the modern era. In Eastland v. United States Serviceman’s Fund, a private nonprofit organization filed suit against the Chairman of a Senate subcommittee. The Court was asked to review an appellate court order enjoining a subpoena issued to a bank for the nonprofit’s account information.¹ In reversing the appellate court, the Court reaffirmed the importance of the subpoena power and further concluded that the Speech or Debate Clause acts as a significant barrier to judicial interference in Congress’s exercise of that power.² The Court began by noting that the “power to investigate and to do so through compulsory process” has “long been held to be a legitimate” and “indispensable ingredient of lawmaking,” at least when an investigation “is related to and in furtherance of a legitimate task of Congress.”³

The opinion went further, however, interpreting the Speech or Debate Clause, which provides that no Member of Congress may be “questioned in any other Place” for “any Speech or Debate in either House,” to limit significantly the Court’s ability to review a committee’s exercise of its subpoena power.⁴ The Court determined that because the issuance of a subpoena is a protected legislative act under the Clause, the act was “immune from judicial interference.”⁵ Eastland is generally cited for the proposition that the Speech or Debate Clause prohibits courts from entertaining direct pre-enforcement challenges to congressional subpoenas.⁶ Instead, the recipient of a subpoena may refuse to comply, risk being cited for criminal contempt or becoming the subject of a civil enforcement lawsuit, and then present his or her defense in that subsequent action.⁷

While it is generally true that courts will not interfere in valid congressional attempts to obtain information, especially through the exercise of the subpoena power, the concurrence in Eastland clarified that judicial restraint is not absolute.⁸ The Speech or Debate Clause does not, for example, bar indirect challenges to a subpoena brought against a third-party rather than against Congress itself.⁹ These lawsuits generally arise when a committee issues a subpoena for documents not to the target of the investigation but rather to a third-party custodian of records. In such a scenario the party with a personal interest in the records is “not in a position to assert its claim of constitutional right by refusing to comply with a subpoena” and may instead bring suit against the neutral third party to block compliance with the subpoena.¹⁰

ArtI.S8.C18.7.10 Congress’s Investigatory Powers and the President

The Supreme Court appears to be less deferential to Congress when Congress uses its investigatory powers to examine activities of the President. In Trump v. Mazars,¹ President Donald Trump brought suit in his personal capacity to block his banks and accounting firm from complying with various committee subpoenas for his personal financial records primarily on the ground that the committees had no valid legislative purpose to seek his personal financial information.² Applying the deferential legislative purpose standard used by the Court in cases like McGrain and Barenblatt, the opinions below upheld the committee subpoenas.³ On appeal to the Supreme Court, Mazars presented the Court with its first opportunity to directly consider the authority of Congress to investigate the President.⁴

The Court’s opinion in Mazars established that the Constitution does not make Presidents immune from investigation,⁵ but it also clarified that, in the context of congressional investigations, the separation of powers requires that the President be treated somewhat differently from others.⁶ The opinion described the courts below as having mistakenly “treated [this case] much like any other,” applying standards and principles established in “precedents that do not involve the President’s papers.”⁷ Subpoenas for the President’s personal records, the Court determined, involve significant separation of powers concerns that trigger a different, more scrutinizing approach to the scope of Congress’s power. But the Court also rejected as inappropriate invitations to import the heightened “demonstrated, specific need” or “demonstrably critical” standards that had been used in prior cases involving Executive privilege—a privilege not at issue in Mazars due to the personal nature of the documents sought.⁸ Instead, Chief Justice John Roberts’s opinion for the Court charted a middle course by identifying at least four “special considerations” to help lower courts to appropriately balance the “legislative interests of Congress” with “the ‘unique position’ of the President.”⁹

First, a reviewing court should “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.”¹⁰ Second, courts “should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.”¹¹ Third, “courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.”¹² Fourth, “courts should be careful to assess the burdens imposed on the President by a subpoena.”¹³

Mazars’ “special considerations” were tailored to Presidential records. To view the case otherwise—for example, to apply the “special considerations” to congressional subpoenas issued as part of a more typical oversight investigation into agency activity—would put the opinion in tension with previous precedent, including the principles established in McGrain.¹⁴ Nothing in the Mazars opinion appears to signal that the majority intended to alter previously established principles in congressional investigations not involving the President.

Conspicuously absent from the Court’s oversight jurisprudence is any evaluation of Executive privilege. Despite the sometimes prevalent role played by executive privilege in congressional investigations of the Executive Branch, the Court has never issued an opinion addressing such a dispute.¹⁵ Even the lower federal courts have only rarely taken on interbranch oversight disputes involving Executive privilege.¹⁶ Recent changes in Congress’s approach to the enforcement of its own investigatory powers, however, suggest that the traditionally limited judicial role in interbranch oversight disputes—including those involving Executive privilege—may be evolving. In recent years, the House has increasingly relied on the courts as a means to enforce committee subpoenas issued to members of the Executive Branch.¹⁷ In these instances, committees have obtained authorization from the House to file a civil claim in federal court, seeking a court order directing compliance with a committee subpoena.¹⁸ Although these subpoena enforcement cases have not reached the Supreme Court, lower federal courts, including the U.S. Court of Appeals for the D.C. Circuit have generally found these claims to be justiciable.¹⁹ As a result, the Judiciary’s role in resolving information access disputes between Congress and the Executive Branch may become more significant.

ArtI.S8.C18.8.1 Overview of Congress’s Immigration Powers

Long-standing Supreme Court precedent recognizes Congress as having “plenary” power over immigration, giving it almost complete authority to decide whether foreign nationals (“aliens,” under governing statutes and case law) may enter or remain in the United States.¹ But while Congress’s power over immigration is well established, defining its constitutional underpinnings is more difficult. The Constitution does not mention immigration, but parts of the Constitution address related subjects. The Supreme Court has sometimes relied upon Congress’s powers over naturalization (the term and conditions in which an alien becomes a U.S. citizen),² foreign commerce,³ and, to a lesser extent, upon the Executive Branch’s implied Article II foreign affairs power,⁴ as sources of federal immigration power.⁵ While these powers continue to be cited as supporting the immigration power, since the late nineteenth century, the Supreme Court has described the power as flowing from the Constitution’s establishment of a federal government.⁶ The United States government possesses all the powers incident to a sovereign, including unqualified authority over the Nation’s borders and the ability to determine whether foreign nationals may come within its territory.⁷ The Supreme Court has generally assigned the constitutional power to regulate immigration to Congress, with executive authority mainly derived from congressional delegations of authority.⁸

In exercising its power over immigration, Congress can make laws concerning aliens that would be unconstitutional if applied to citizens.⁹ The Supreme Court has interpreted that power to apply with most force to the admission and exclusion of nonresident aliens abroad seeking to enter the United States.¹⁰ The Court has further upheld laws excluding aliens from entry on the basis of ethnicity,¹¹ gender and legitimacy,¹² and political belief.¹³ It has also upheld an Executive Branch exclusion policy, premised on a broad statutory delegation of authority, that some evidence suggested was motivated by religious animus.¹⁴ But the immigration power has proven less than absolute when directed at aliens already physically present within the United States.¹⁵ Even so, the Supreme Court’s jurisprudence reflects that Congress retains broad power to regulate immigration and that the Court will accord substantial deference to the government’s immigration policies, particularly those that implicate matters of national security.

ArtI.S8.C18.8.2 English Common Law on Immigration

Before the Constitution was ratified, the English common law recognized that the monarchy had authority to bar aliens from entering the country and expel those who had entered, although the expulsion power may have been subject to limitations.¹ William Blackstone, writing in 1765, reviewed the law of nations and summarized the basis of the monarch’s exclusion and expulsion powers as follows:

[I]t is left in the power of all states, to take such measures about the admission of

strangers, as they think convenient; those being ever excepted who are driven on the

coasts by necessity, or by any cause that deserves pity or compassion. . . . [S]o long as

their nation continues at peace with ours, and they themselves behave peaceably,

[foreigners] are under the king’s protection; though liable to be sent home whenever

the king sees occasion.²

Blackstone was an authority “most familiar to the Framers,”³ and his endorsement of the principle that sovereigns possessed power to exclude or expel aliens from their territories was widely shared by scholars of the law of nations in the eighteenth and nineteenth centuries.⁴ Many of these scholars, however, concluded that the proper exercise of the exclusion power required the sovereign to state good reasons for the decision to deny entry to an alien.⁵ Scholars also debated the extent of the expulsion power, with some arguing that expulsion of resident aliens required special justification.⁶

ArtI.S8.C18.8.3 Colonial Period, Constitutional Convention, and Immigration

At the Constitutional Convention, James Madison, in a debate on a length of citizenship requirement for the House of Representatives, described immigration as essential to the new country’s prospects: “He [Madison] wished to invite foreigners of merit and republican principles among us. America was indebted to emigration for her settlement and prosperity. That part of America which had encouraged them most had advanced most rapidly in population, agriculture, and the arts.”¹ Madison’s open attitude towards immigration has been taken as representative of the Framers’ “general feeling at the time.”² But the Constitution that they produced did not contain any provision explicitly addressing the Federal Government’s power to admit, exclude, or expel aliens (unless one counts the compromise over delayed prohibition of the slave trade reflected in the Migration or Importation Clause contained in Article I, Section 9).³

During the colonial period, the laws of some colonies had restricted the entry of particular categories of immigrants, including paupers and criminals.⁴ England had power to override these restrictions, however, and engaged in a consistent practice of transporting convicts to the American colonies over colonial protest.⁵ That practice resulted in the transportation of 50,000 convicts from England to the United States between 1718 and 1775, accounting for one quarter of all British immigrants during that period.⁶ In 1788, after the Constitutional Convention but before ratification, the Congress of the Confederation recommended by resolution that the individual states enact laws to prohibit the transportation of convicts from foreign countries into the United States.⁷

ArtI.S8.C18.8.4 Early Federal Laws on Immigration

From ratification of the Constitution until 1875, Congress took little action with respect to immigration.¹ However, one major outlier to Congress’s inactivity during this period—contained in the group of laws enacted in 1798 commonly known as the as the Alien and Sedition Acts—generated intense debate over whether the Constitution gave Congress power to regulate immigration.² The Alien Friends Act empowered the President “to order all such aliens as he shall judge dangerous to the peace and safety of the United States . . . to depart out of the territory of the United States.”³ The Naturalization Act of 1798 imposed registration requirements on “all white aliens residing or arriving” in the United States.⁴ Federalist proponents of these laws defended their constitutionality by drawing from the law of nations literature to argue that inherent principles of sovereignty gave Congress power to regulate immigration, including by providing for the expulsion of aliens.⁵ The party of John Adams and Alexander Hamilton, the Federalists, pointed to various constitutional provisions, including the Article I provision giving Congress power to declare war, that they argued incorporated the sovereignty principles into the constitutional system.⁶ Opponents of the laws, Thomas Jefferson and James Madison among them, argued that the power to expel aliens did not fit within any of Congress’s enumerated powers, that Congress did not possess any unenumerated or inherent powers, and that the law of nations (to the extent it was relevant) only permitted the expulsion of enemy aliens.⁷ The federal judiciary never resolved the constitutionality of the laws.⁸ The Alien Friends Act expired on its own terms in 1800; its registration requirements, which appear not to have been enforced, were repealed in the Naturalization Act in 1802.⁹

Aside from the short-lived deportation and registration provisions in the Alien and Sedition Acts, few federal statutes pertained to immigration before 1875.¹⁰ During this period, however, some state laws following in the colonial tradition provided for the exclusion or expulsion of convicts, paupers, and people with contagious diseases.¹¹ Some states, primarily but not exclusively in the South, also provided for the exclusion and in some cases expulsion of free Blacks, regardless of their national origin.¹² A subset of these laws required that Black seamen be detained or quarantined while their vessels were in port.¹³ Yet state immigration restrictions during this period did not impose numerical limits on immigration and, as such, did not resemble the regime of limited immigration that has existed under federal law since 1921.¹⁴

ArtI.S8.C18.8.5 Immigration Jurisprudence (1837–1889)

While there was little federal immigration regulation before 1875, the Supreme Court initially recognized state immigration powers before building tepidly to the conclusion that the Foreign Commerce Clause of Article I bestowed exclusive authority to regulate immigration on Congress. In the 1837 case Mayor, Aldermen & Commonalty of City of New York v. Miln, the Court upheld a New York statute requiring masters of vessels arriving from foreign or out-of-state ports to provide passenger manifests.¹ The Court reasoned that power over alien entry fell within the states’ general police powers.² The opinion did not express a view as to whether the Federal Government also had power to exclude aliens.³

The 1849 Passenger Cases, however, chipped away at the state power recognized in Miln when the Court voted 5-4 to strike down as unconstitutional New York and Massachusetts statutes that imposed head taxes on foreign passengers arriving by sea.⁴ The Passenger Cases did not produce a majority opinion.⁵ The five Justices in the majority, each writing separately, agreed that the state head tax statutes encroached impermissibly on federal policy to encourage immigration. But the Justices did not agree as to the source of the federal immigration power—the separate opinions pointed variously to the Commerce, Taxation, and Naturalization powers, the Importation and Migration Clause, and inherent principles of sovereignty—or about whether that power was exclusive.⁶

Finally, in the 1875 case Henderson v. New York, the Court overcame these earlier disagreements and embraced unanimously the Foreign Commerce Clause as the source of an exclusive federal immigration power.⁷ “[T]he transportation of passengers from European ports to those of the United States,” the Court reasoned, “has become a part of our commerce with foreign nations, of vast interest to this country, as well as to the immigrants who come among us to find a welcome and a home within our borders.”⁸ Accordingly, “[a] law or a rule emanating from any lawful authority, which prescribes terms or conditions on which alone [a] vessel can discharge its passengers, is a regulation of commerce; and, in case of vessels and passengers coming from foreign ports, is a regulation of commerce with foreign nations.”⁹ Henderson and its companion case Chy Lung v. Freeman struck down New York, Louisiana, and California statutes that required vessel masters to post bond for some foreign passengers.¹⁰

Thereafter, the Court reaffirmed the principle that the Foreign Commerce Clause gives Congress, not the states, power to regulate immigration in the 1883 case of New York v. Compagnie Generale Transatlantique.¹¹ There, the Court struck down a New York statute that imposed taxes on ship owners for the inspection of foreign passengers.¹² And in the 1884 Head Money Cases,¹³ the Court upheld a federal statute that did much the same thing as the state statute invalidated in Transatlantique.¹⁴ The Transatlantique and the Head Money Cases appeared to cement the Supreme Court’s commerce-based immigration doctrine, but five years after the Head Money Cases the Court would alter course and hold in the Chinese Exclusion Case that the power was based instead on inherent principles of sovereignty.¹⁵

ArtI.S8.C18.8.6 Immigration Jurisprudence (1889–1900)

Federal regulation of immigration began just as the Supreme Court was solidifying its short-lived doctrine that the Foreign Commerce Clause supplied the basis for exclusive federal power over the subject. In 1875, Congress passed the Page Act, which, among other things, barred the entry of aliens with criminal convictions and women “imported for the purposes of prostitution.”¹ Then, in 1882, Congress restricted the entry of “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.”² In that same year, Congress passed the Chinese Exclusion Act, which generally barred the entry of “Chinese laborers” into the United States.³ And in 1891, Congress expanded the categories of excludable aliens to include “[a]ll idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude, polygamists, and also any persons whose ticket or passage is paid for with the money of another or who is assisted by others to come.”⁴ Thus, by the late 1800s, Congress had established a statutory regime governing the admission of aliens.

The Supreme Court set the foundation for its doctrine that inherent principles of sovereignty give Congress plenary power to regulate immigration in the Chinese Exclusion Case of 1889. In this historic case, the Court upheld a federal law that expanded upon the Chinese Exclusion Act by prohibiting Chinese laborers from returning to the United States even if they had received, before their departures from the United States, certificates allowing their return issued under the earlier Chinese Exclusion Act.⁵ In a break from earlier cases relying on the Foreign Commerce Clause as the basis for the federal immigration power, the Court reasoned that the power to exclude aliens was “an incident of sovereignty belonging to the government of the United States,” and that—without exception—this sovereign power could be “exercise[d] at any time when, in the judgment of the government, the interests of the country require it.”⁶

Three years later, in 1892, the Supreme Court held that Congress’s inherent immigration power, as recognized in the Chinese Exclusion Case, foreclosed an alien’s challenge to his exclusion from the United States pursuant to the Immigration Act of 1891. In Nishimura Ekiu v. United States, the Court determined that “[i]t is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and Executive Branches of the National Government.”⁷ Instead, the Court declared, “the decisions of executive or administrative officers, acting within powers expressly conferred by congress, are due process of law” for aliens who seek to enter the United States.⁸

By the end of the nineteenth century, the Supreme Court construed Congress’s broad immigration power as covering not only the exclusion of foreign nationals seeking entry into the United States, but also the expulsion of aliens already within the territorial boundaries of this country.⁹ For example, in 1896 in Fong Yue Ting v. United States, the Court upheld the deportation of Chinese nationals residing in the United States following their failure to obtain “certificates of residence” under the Chinese Exclusion Act.¹⁰ The Court determined that “[t]he right of a nation to expel or deport foreigners who have not been naturalized, or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified, as the right to prohibit and prevent their entrance into the country.”¹¹ Thus, based on the Supreme Court’s early jurisprudence, Congress, and by extension, the Executive Branch, had virtually unlimited authority to exclude and deport aliens from the United States with little judicial intervention.

ArtI.S8.C18.8.7.1 Overview of Immigration Plenary Power Doctrine

Upon the advent of the twentieth century, the Supreme Court began to establish some outer limits on Congress’s seemingly unfettered power over immigration, particularly with respect to aliens physically present within the United States. But the Court’s jurisprudence repeatedly recognized that Congress retains broader power with respect to aliens seeking to enter this country.

ArtI.S8.C18.8.7.2 Aliens in the United States

In 1903, the Court in the Japanese Immigrant Case reviewed the legality of deporting an alien who had lawfully entered the United States, clarifying that “an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population” could not be deported without an “opportunity to be heard upon the questions involving his right to be and remain in the United States.”¹ In the decades that followed, the Supreme Court maintained the notion that “once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.”²

Eventually, the Supreme Court extended these constitutional protections to all aliens within the United States, including those who entered unlawfully, declaring that “aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”³ The Court reasoned that aliens physically present in the United States, regardless of their legal status, are recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments.⁴ Thus, the Court determined, “[e]ven one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.”⁵ Accordingly, notwithstanding Congress’s indisputably broad power to regulate immigration, fundamental due process requirements notably constrained that power with respect to aliens within the territorial jurisdiction of the United States.⁶

Yet the Supreme Court has also suggested that the extent of due process protection “may vary depending upon [the alien’s] status and circumstance.”⁷ In various opinions, the Court has suggested that at least some of the constitutional protections to which an alien is entitled may turn upon whether the alien has been admitted into the United States or developed substantial ties to this country.⁸ Thus, while the Court has recognized that due process considerations may constrain the Federal Government’s exercise of its immigration power, there is some uncertainty regarding the extent to which these constraints apply with regard to aliens within the United States.

ArtI.S8.C18.8.7.3 Aliens Seeking to Enter the United States

While the Supreme Court has generally recognized that due process considerations provide some constraint on the procedures employed to remove aliens from the United States, the Court has repeatedly affirmed the plenary nature of the immigration power with respect to aliens seeking to enter the country. In particular, the Court has reasoned that, while aliens who have entered the United States—even unlawfully—may not be deported without due process, an alien “on the threshold of initial entry stands on a different footing” because he or she is theoretically outside the United States and typically beyond the veil of constitutional protection.¹

For example, in United States ex rel. Knauff v. Shaughnessy, the German wife of a U.S. citizen challenged her exclusion without a hearing under the War Brides Act.² The German national was detained at Ellis Island during her proceedings, and, therefore, technically within United States territory.³ Nevertheless, the Supreme Court held that the government had the “inherent executive power” to deny her admission, and that, “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”⁴

Similarly, in Shaughnessy v. United States ex rel. Mezei, an alien detained on Ellis Island argued that the government’s decision to deny admission without a hearing violated due process.⁵ Citing “the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments,” the Court determined that the Executive was authorized to deny entry without a hearing, and that the decision was not subject to judicial review.⁶ Further, the Court held, although the alien had “temporary harborage” inside the United States pending his exclusion proceedings, he had not effected an “entry” for purposes of immigration law, and could be indefinitely detained and “treated as if stopped at the border.”⁷

The Supreme Court, however, has held that Congress’s largely unencumbered power over the entry of aliens does not extend to lawful permanent residents (LPRs) who return from trips abroad.⁸ In Kwong Hai Chew v. Colding, the Court ruled that an LPR returning from a five-month voyage as a crewman on a U.S. merchant ship was entitled to a hearing upon being detained by immigration officers because he retained the same constitutional rights that he had enjoyed prior to leaving the United States.⁹ Subsequently, in Rosenberg v. Fleuti, the Court reaffirmed that an LPR “is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him, a holding which supports the general proposition that a resident alien who leaves this country is to be regarded as retaining certain basic rights.”¹⁰ Thus, unlike aliens seeking initial admission into the United States, aliens who have resided in the United States as LPRs are fully vested with constitutional protections upon their return from trips abroad.¹¹

ArtI.S8.C18.8.8.1 Overview of Modern Immigration Jurisprudence

Since the latter part of the twentieth century, the Supreme Court has distinguished between aliens who have entered the United States and aliens who have gained no legal foothold into this country in shaping the scope of Congress’s immigration power.¹ Generally, the Court’s jurisprudence has been based on the notion that nonresident aliens outside the United States have no constitutional or statutory rights with respect to entry and therefore no legal basis to challenge their exclusion.²

Supreme Court precedent establishes that inherent principles of sovereignty give Congress “plenary power” to regulate immigration. Notwithstanding the implicit nature of this authority, the Court has described the immigration power as perhaps the most complete that Congress possesses.³ The core of this power—the part that has proven most impervious to judicial review—is the authority to determine which aliens may enter the United States and under what conditions. The Court has also established that the Executive Branch, when enforcing the laws concerning alien entry, has broad authority to do so mostly free from judicial oversight. While the Court has recognized that aliens present within the United States generally have more robust constitutional protections than aliens seeking entry into the country, the Court has upheld federal statutes impacting the rights of aliens within the United States in light of Congress’s unique immigration power, though the degree to which the immigration power is constrained by these constitutional protections remains a matter of continuing uncertainty.

ArtI.S8.C18.8.8.2 Exclusion of Aliens

In Boutilier v. Immigration & Naturalization Service, the Court rejected an alien’s constitutional vagueness challenge to a statute that barred the admission of homosexuals (who had been interpreted by immigration authorities to fall under the prohibition on the admission of “persons afflicted with psychopathic personality”), observing that “[i]t has long been held that the Congress has plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.”¹

In a similar vein, in 1972, the Supreme Court in Kleindienst v. Mandel rejected a First Amendment challenge to the application of a statute that barred the admission of aliens who advocated communism.² Notably, in Mandel, the Court considered a constitutional challenge to the exclusion of an alien that was not brought by the alien himself, but by a group of professors who had invited the alien to speak at their universities.³ Recognizing that “plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established,” the Court held that it would uphold, in the face of a constitutional challenge, an alien’s exclusion as long as there is “a facially legitimate and bona fide reason” for the decision.⁴ Thus, even when reviewing constitutional challenges brought by U.S. citizens, the Court has adopted a highly deferential standard for reviewing the decision to exclude an alien.

The Supreme Court in 1977 maintained this deferential posture in Fiallo v. Bell, a case in which a group of U.S. citizens and lawful permanent residents (LPRs) brought an equal protection challenge to a statute that granted special immigration preferences to the children and parents of U.S. citizens and LPRs, unless the parent-child relationship was that of a father and an illegitimate child.⁵ Noting at the outset “the limited scope of judicial inquiry into immigration legislation,” the Court upheld the statute in view of Congress’s “exceptionally broad power to determine which classes of aliens may lawfully enter the country.”⁶ Importantly, the Court explained that “it is not the judicial role in cases of this sort to probe and test the justifications” for Congress’s legislative policy distinctions between classes of aliens.⁷

ArtI.S8.C18.8.8.3 Kerry v. Din and Trump v. Hawaii

The Supreme Court’s recognition of Congress’s broad power to exclude aliens was further illustrated in its 2015 decision in Kerry v. Din. In that case, a U.S. citizen (Fauzia Din) challenged the State Department’s denial of her husband’s visa application, claiming that the agency failed to adequately explain the basis for the denial.¹ The Supreme Court rejected Din’s challenge in a 5-4 decision, but without a majority opinion.² Justice Antonin Scalia, writing for a plurality of three Justices, determined that Din did not have a protected liberty interest under the Due Process Clause in her husband’s ability to come to the United States, and did not decide whether the government had established a facially legitimate and bona fide reason for excluding her husband.³

However, in a concurring opinion joined by Justice Samuel Alito, Justice Anthony Kennedy determined that the government had shown a facially legitimate and bona fide reason for Din’s exclusion by citing the Immigration and Nationality Act’s provision barring the issuance of visas to aliens who engage in terrorist activities.⁴ Justice Kennedy reasoned that, even if Din’s rights were burdened by the denial of her husband’s visa, the government’s reference to the statutory provision provided ample justification even if the denial did not disclose the facts underlying that decision.⁵ At the same time, Justice Kennedy suggested that there may be circumstances where a court could “look behind” the government’s stated reason for a visa denial if the plaintiff makes “an affirmative showing of bad faith” on the part of the government.⁶ Nevertheless, because Din had not “plausibly alleged with sufficient particularity” that the government acted in bad faith, Justice Kenney declined to look beyond the government’s stated reason for the visa denial.⁷

The Supreme Court reaffirmed that Mandel and its progeny permit courts to conduct only a limited review of Executive decisions to exclude aliens abroad in the 2018 case Trump v. Hawaii.⁸ The case concerned a presidential proclamation that provided for the indefinite exclusion of specified categories of nonresident aliens from seven countries, subject to some waivers and exemptions.⁹ Five of the seven countries covered by the proclamation were Muslim-majority countries.¹⁰ The proclamation, like two earlier executive orders that imposed entry restrictions of a similar nature, became known colloquially as the “Travel Ban” or “Muslim Ban.”¹¹ The stated purpose of the proclamation was to protect national security by excluding aliens who could not be properly vetted due to the deficient information-sharing practices of their governments or the conditions in their countries.¹² U.S. citizens and other challengers argued that the actual purpose of the proclamation was to exclude Muslims from the United States and that it therefore violated the Establishment Clause of the First Amendment.¹³ They based this argument primarily upon extrinsic evidence—that is, evidence outside of the four corners of the proclamation—including statements that the President had made as a candidate calling for a “total and complete shutdown of Muslims entering the United States.”¹⁴

A five-Justice majority of the Supreme Court rejected the Establishment Clause challenge and upheld the proclamation.¹⁵ Writing for the majority, Chief Justice Roberts reiterated the holdings from Mandel and Fiallo that matters concerning the admission or exclusion of aliens are “largely immune from judicial control” and are subject only to “highly constrained” judicial inquiry when exclusion “allegedly burdens the constitutional rights of a U.S. citizen.”¹⁶ But the Court did not decide whether the narrow scope of this inquiry barred consideration of extrinsic evidence of the proclamation’s purpose.¹⁷ Much of the litigation in the lower courts had turned on this issue. A majority of judges on the U.S. Court of Appeals for the Fourth Circuit, citing Justice Kennedy’s concurrence in Din, deemed it appropriate to consider the campaign statements and other extrinsic evidence of anti-Muslim animus and relied on that evidence to hold that the proclamation likely violated the First Amendment.¹⁸ Dissenting Fourth Circuit judges, by contrast, reasoned that Mandel and the other exclusion cases prohibited consideration of the extrinsic evidence.¹⁹ Instead of resolving this disagreement, the Supreme Court assumed without deciding that it could consider the extrinsic evidence when reviewing the proclamation under a “rational basis” standard to determine “whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes.”²⁰ The Court explained that the government “hardly ever” loses cases under the rational basis standard unless the laws at issue lack any purpose other than a “bare . . . desire to harm a politically unpopular group.”²¹ Applying this standard, the Court held that the proclamation satisfied it mainly because agency findings about deficient information-sharing by the governments of the seven covered countries established a “legitimate grounding in national security concerns, quite apart from any religious hostility.”²²

ArtI.S8.C18.8.8.4 Federal Laws Relating to Aliens

The line of exclusion cases from Kleindienst v. Mandel to Trump v. Hawaii makes clear that claims brought by U.S. citizens against the exclusion of aliens abroad are governed by a narrow standard of review under which the government has never lost before the Supreme Court, not even when extrinsic evidence has suggested that the Executive may have acted for an unconstitutional purpose.¹ Yet even with respect to aliens within the United States—a group that, as noted above, enjoys more constitutional protections than aliens seeking entry—the Court has deferred to Congress’s policy judgments. For example, in Mathews v. Diaz, the Supreme Court in 1976 upheld a federal statute that restricted eligibility for participation in a federal medical insurance program to U.S. citizens or lawful permanent residents (LPRs) who had continuous residence in the United States for five years.² In Mathews, a group of aliens who had been lawfully admitted to the United States, but failed to meet the federal statute’s eligibility requirements, challenged the statute on equal protection grounds.³ The Court observed that, “in the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens,” and that, based on that power, Congress could, as a matter of policy, decide which classes of aliens would be entitled to the benefits that are available to U.S. citizens.⁴ Therefore, the Court determined, “it is unquestionably reasonable for Congress to make an alien’s eligibility depend on both the character and the duration of his residence.”⁵

On the other hand, in Zadvydas v. Davis, the Supreme Court in 2001 ruled that the indefinite detention of lawfully admitted aliens who had been ordered removed from the United States following formal removal proceedings “would raise a serious constitutional problem.”⁶ The Court reasoned that, although Congress has broad authority over immigration, “that power is subject to important constitutional limitations.”⁷ Noting that “[f]reedom from imprisonment . . . lies at the heart of the liberty that [the Due Process] Clause protects,” the Court determined that the government failed to show a “sufficiently strong special justification” for the indefinite detention of aliens that outweighed their constitutionally protected liberty interest.⁸ In addition, the Court emphasized the “critical distinction” between aliens who have entered the United States and those who have not entered the country, observing that “certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.”⁹ Accordingly, the Court held that the federal statute that authorized the detention of aliens in the United States pending their removal had to be construed as limiting the detention to “a period reasonably necessary to secure removal.”¹⁰

But more recently, in Department of Homeland Security v. Thuraissigiam, the Supreme Court in 2020 held that an alien apprehended after entering the United States unlawfully, who was subject to an “expedited removal” process applicable to aliens apprehended at or near the border, could not raise a due process challenge to a federal statute limiting judicial review of those proceedings.¹¹ Although the alien was twenty-five yards inside the United States when apprehended, the Court reasoned that its “century-old” precedent holding that aliens seeking initial entry to the United States have no constitutional rights regarding their applications for admission “would be meaningless if it became inoperative as soon as an arriving alien set foot on U.S. soil.”¹² The Court determined that the alien essentially remained “‘on the threshold’” of entry and could be “‘treated’ for due process purposes ‘as if stopped at the border.’”¹³ To conclude otherwise, the Court declared, “would undermine the ‘sovereign prerogative’ of governing admission to this country and create a perverse incentive to enter at an unlawful rather than a lawful location.”¹⁴

ArtI.S8.C18.8.8.5 Immigration-Related State Laws

While the Supreme Court has generally shown deference to Congress’s authority over aliens, the Court has shown less deference to state government regulation of aliens. In Graham v. Richardson, the Supreme Court in 1971 held that state laws denying welfare benefits to noncitizens, or conditioning such benefits on a long period of residence, violated equal protection.¹ Recognizing that both U.S. citizens and aliens were entitled to the equal protection of the laws of their state of residence, the Court determined that a state’s desire to preserve limited welfare benefits for its citizens was not a sufficient justification for denying benefits to aliens.² The Court, moreover, observed that only Congress had the power to formulate policies with respect to the admission of aliens and the conditions of their residence in the United States, and concluded that by denying welfare benefits to aliens, the state laws “conflict[ed] with these overriding national policies in an area constitutionally entrusted to the Federal Government.”³

Similarly, in Plyler v. Doe, the Supreme Court in 1982 struck down a Texas statute that withheld funds for the education of children who were not “legally admitted” into the United States, and a school district policy that denied enrollment to such children.⁴ The Court noted that aliens present within the United States, even unlawfully, “have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”⁵ Thus, the Court held, the plaintiffs challenging the state law and school district policy that denied them a basic education were entitled to equal protection.⁶ The Court concluded that, because the state failed to show that its school enrollment policies advanced a substantial state interest, those policies could not survive constitutional scrutiny.⁷ Further, the Court observed that Congress uniquely had the power to create “a complex scheme governing admission to our Nation and status within our borders,” and that the state’s policy of restricting access to education for aliens “d[id] not operate harmoniously within the federal program.”⁸ But the Court suggested that the state’s policy would have been permissible if it had advanced an “identifiable congressional policy” to limit access to education for unlawfully present aliens.⁹

Although the Federal Government has the exclusive power to regulate immigration, not every state law that pertains to aliens is necessarily a regulation of immigration that is “per se preempted” by that federal power.¹⁰ But state laws that conflict with or pose an obstacle to the federal regulatory scheme are preempted.¹¹ For example, in Arizona v. United States, the Supreme Court in 2012 held that Arizona laws that made it a misdemeanor to fail to comply with federal alien-registration requirements, that made it a misdemeanor for an unlawfully present alien to seek or engage in employment in the state, and that authorized police officers to arrest aliens on the grounds that they were potentially removable were preempted by federal law.¹² Citing the Federal Government’s “broad, undoubted power over the subject of immigration and the status of aliens,” the Court determined that the Arizona provisions intruded into areas that Congress already regulated, and conflicted with Congress’s existing statutory framework governing aliens.¹³

The Supreme Court’s greater scrutiny of state laws reveals an important “distinction between the constitutional limits on state power and the constitutional grant of power to the Federal Government” with respect to immigration.¹⁴ The Court’s jurisprudence suggests that the Court is willing to give more deference to Congress’s policy choices in the immigration context because “it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens.”¹⁵ Conversely, the Court is willing to exercise less judicial restraint when the constitutional challenge in question involves the relationship between aliens and states rather than aliens and the Federal Government, especially if the state’s policy encroaches upon the Federal Government’s authority.¹⁶