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CRS Annotated Constitution

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Although it is possible, even likely, that Morrison and Mistretta represent a decision by the Court to adopt for all separation– of–powers cases the functional analysis, the history of adjudication since 1976 and the shift of approach between Myers and Humphrey’s Executor suggest caution. Recurrences of the formalist approach have been noted. Additional decisions must be forthcoming before it can be decided that the Court has finally settled on the functional approach.


By providing for a National Legislature of two Houses, the Framers, deliberately or adventitiously, served several functions. Examples of both unicameralism and bicameralism abounded. Some of the ancient republics, to which the Framers often repaired for the learning of experience, had two–house legislatures, and the Parliament of Great Britain was based in two social orders, the hereditary aristocracy represented in the House of Lords and the[p.71]freeholders of the land represented in the House of Commons. A number of state legislatures, following the Revolution, were created unicameral, and the Continental Congress, limited in power as it was, consisted of one house.

From the beginning in the Convention, in the Virginia Plan, a two–house Congress was called for. The Great Compromise, one of the critical decisions leading to a successful completion of the Convention, resolved the dispute about the national legislature by providing for a House of Representatives apportioned on population and a Senate in which the States were equally represented. The first function served, thusly, was federalism.32 Coextensively important, however, was the separation–of–powers principle served. The legislative power, the Framers both knew and feared, was predominant in a society dependent upon the suffrage of the people, and it was important to have a precaution against the triumph of transient majorities. Hence, the Constitution’s requirement that before lawmaking could be carried out bills must be deliberated in two Houses, their Members beholden to different constituencies, was in pursuit of this observation from experience.33

Events since 1787, of course, have altered both the separation– of–powers and the federalism bases of bicameralism, in particular the adoption of the Seventeenth Amendment resulting in the popular election of Senators, so that the differences between the two Chambers are today less pronounced.


Two important doctrines of constitutional law—that the Federal Government is one of enumerated powers and that legislative powers may not be delegated—are derived in part from this section. The classical statement of the former is that by Chief Justice Marshall in McCulloch v. Maryland: “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.”34


That, however, “the executive power” is not confined to those items expressly enumerated in Article II was asserted early in the history of the Constitution by Madison and Hamilton alike and is found in decisions of the Court;35 a similar latitudinarian conception of “the judicial power of the United States” was voiced in Justice Brewer’s opinion for the Court in Kansas v. Colorado.36 But even when confined to “the legislative powers herein granted,” the doctrine is severely strained by Marshall’s conception of some of these as set forth in his McCulloch v. Maryland opinion. He asserts that “the sword and the purse, all the external relations and no inconsiderable portion of the industry of the nation, are intrusted to its government;”37 he characterizes “the power of making war,” of “levying taxes,” and of “regulating commerce” as “great, substantive and independent powers;”38 and the power conferred by the “necessary and proper” clause embraces, he declares, all legislative “means which are appropriate” to carry out the legitimate ends of the Constitution, unless forbidden by “the letter and spirit of the Constitution.”39

Nine years later, Marshall introduced what Story in his Commentaries labels the concept of “resulting powers,” those which “rather be a result from the whole mass of the powers of the National Government, and from the nature of political society, than a consequence or incident of the powers specially enumerated.”40 Story’s reference is to Marshall’s opinion in American Insurance Co. v. Canter,41 where the latter said, that “the Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.”42 And from the power to acquire territory, he continues arises as “the inevitable consequence,” the right to govern it.43

Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds that ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the “rights expressly given, and duties expressly enjoined” by the Constitution;44 the power to impart to the paper cur[p.73]rency of the Government the quality of legal tender in the payment of debts;45 the power to acquire territory by discovery;46 the power to legislate for the Indian tribes wherever situated in the United States;47 the power to exclude and deport aliens;48 and to require that those who are admitted be registered and fingerprinted;49 and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. Thus, in United States v. Curtiss– Wright Corp.,50 decided in 1936, Justice Sutherland asserted the dichotomy of domestic and foreign powers, with the former limited under the enumerated powers doctrine and the latter virtually free of any such restraint. That doctrine has been the source of much scholarly and judicial controversy, but, although limited, it has not been repudiated.


32 The Federalist, No. 39 (J. Cooke ed. 1961), 250–257 (Madison).
33 Id., No. 51, 347–353 (Madison). The assurance of the safeguard is built into the presentment clause. Article I, Sec. 7, cl. 2; and see id., cl. 3. The structure is not often the subject of case law, but it was a foundational matter in INS v. Chadha, 462 U.S. 919, 944–951 (1983).
34 4 Wheat. (17 U.S.) 316, 405 (1819).
35 Infra, pp. 445–452.
36 206 U.S. 46, 82 (1907).
37 4 Wheat. (17 U.S.), 407.
38 Id., 411.
39 Id., 421.
40 2 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1256. See also id., 1286 and 1330.
41 1 Pet. (26 U.S.) 511 (1828).
42 Id., 542.
43 Id., 543.
44 Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 616, 618–619 (1842).
45 Juilliard v. Greenman, 110 U.S. 421, 449–450 (1884). See also Justice Bradley’s concurring opinion in Knox v. Lee, 12 Wall. (79 U.S.) 457, 565 (1871).
46 United States v. Jones, 109 U.S. 513 (1883).
47 United States v. Kagama, 118 U.S. 375 (1886).
48 Fong Yue Ting v. United States, 149 U.S. 698 (1893).
49 Hines v. Davidowitz, 312 U.S. 52 (1941).
50 299 U.S. 304 (1936).
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