CRS Annotated Constitution

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Hydroelectric Power; Flood Control.—As a consequence, in part, of its power to forbid or remove obstructions to navigation in the navigable waters of the United States, Congress has acquired the right to develop hydroelectric power and the ancillary right to sell it to all takers. By a long–standing doctrine of constitutional law, the States possess dominion over the beds of all navigable streams within their borders,648 but because of the servitude that Congress’ power to regulate commerce imposes upon such streams, the States, without the assent of Congress, practically are unable to utilize their prerogative for power development purposes. Sensing no doubt that controlling power to this end must be attributed to some government in the United States and that “in such matters[p.174]there can be no divided empire,”649 the Court held in United States v. Chandler–Dunbar Co.,650 that in constructing works for the improvement of the navigability of a stream, Congress was entitled, as part of a general plan, to authorize the lease or sale of such excess water power as might result from the conservation of the flow of the stream. “If the primary purpose is legitimate,” it said, “we can see no sound objection to leasing any excess of power over the needs of the Government. The practice is not unusual in respect to similar public works constructed by State governments.”651

Since the Chandler–Dunbar case, the Court has come, in effect, to hold that it will sustain any act of Congress, which purports to be for the improvement of navigation, whatever other purposes it may also embody, nor does the stream involved have to be one “navigable in its natural state.” Such, at least, seems to be the sum of its holdings in Arizona v. California,652 and United States v. Appalachian Power Co.653 In the former, the Court, speaking through Justice Brandeis, said that it was not free to inquire into the motives “which induced members of Congress to enact the Boulder Canyon Project Act,” adding: “As the river is navigable and the means which the Act provides are not unrelated to the control of navigation . . . the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress. Whether the particular structures proposed are reasonably necessary, is not for this Court to determine. . . . And the fact that purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of congressional power.”654

And in the Appalachian Power case, the Court, abandoning previous holdings laying down the doctrine that to be subject to Congress’ power to regulate commerce a stream must be “navigable in fact,” said: “A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken,” provided there must be a “balance between cost and need at a time when the improvement would be useful. . . . Nor is it necessary that the improvements should be actually[p.175]completed or even authorized. The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic. . . . Nor is it necessary for navigability that the use should be continuous. . . . Even absence of use over long periods of years, because of changed conditions, . . . does not affect the navigability of rivers in the constitutional sense.”655

Furthermore, the Court defined the purposes for which Congress may regulate navigation in the broadest terms. “It cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. . . . That authority is as broad as the needs of commerce. . . . Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control.”656 These views the Court has since reiterated.657 Nor is it by virtue of Congress’ power over navigation alone that the National Government may develop water power. Its war powers and powers of expenditure in furtherance of the common defense and the general welfare supplement its powers over commerce in this respect.658

Congressional Regulation of Land Transportation

Federal Stimulation of Land Transportation.—The settlement of the interior of the country led Congress to seek to facilitate access by first encouraging the construction of highways. In successive acts, it authorized construction of the Cumberland and the National Road from the Potomac across the Alleghenies to the Ohio, reserving certain public lands and revenues from land sales for construction of public roads to new States granted statehood.659 Acquisition and settlement of California stimulated interest in railway lines to the west, but it was not until the Civil War that Congress voted aid in the construction of a line from the Missouri River to the Pacific; four years later, it chartered the Union Pacific Company.660

The litigation growing out of these and subsequent activities settled several propositions. First, Congress may provide highways and railways for interstate transportation;661 second, it may char[p.176]ter private corporations for that purpose; third, it may vest such corporations with the power of eminent domain in the States; and fourth, it may exempt their franchises from state taxation.662


648 Pollard v. Hagan, 3 How. (44 U.S.) 212 (1845); Shively v. Bowlby, 152 U.S. 1 (1894).
649 Green Bay & Miss. Canal Co. v. Patten Paper Co., 172 U.S. 58, 80 (1898).
650 229 U.S. 53 (1913).
651 Id., 73, citing Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 142 U.S. 254 (1891).
652 283 U.S. 423 (1931).
653 311 U.S. 377 (1940).
654 283 U.S., 455–456. See also United States v. Twin City Power Co., 350 U.S. 222, 224 (1956).
655 311 U.S., 407, 409–410.
656 Id., 426.
657 Oklahoma v. Atkinson Co., 313 U.S. 508, 523–533 passim (1941).
658 Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).
659 Cf. Indiana v. United States, 148 U.S. 148 (1893).
660 12 Stat. 489 (1862); 13 Stat. 356 (1864); 14 Stat. 79 (1866).
661 The result then as well as now might have followed from Congress’ power of spending, independently of the commerce clause, as well as from its war and postal powers, which were also invoked by the Court in this connection.
662 Thomson v. Union Pacific Railroad, 9 Wall. (76 U.S.) 579 (1870); California v. Pacific Railroad Co. (Pacific Ry. Cases), 127 U.S. 1 (1888); Cherokee Nation v. Southern Kansas Railway Co., 135 U.S. 641 (1890); Luxton v. North River Bridge Co., 153 U.S. 525 (1894).
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