CRS Annotated Constitution

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The “No Preference” Clause

The limitations imposed by this section were designed to prevent preferences as between ports because of their location in different States. They do not forbid such discriminations as between individual ports. Acting under the commerce clause, Congress may do many things that benefit particular ports and which incidentally result to the disadvantage of other ports in the same or neighboring States. It may establish ports of entry, erect and operate lighthouses, improve rivers and harbors, and provide structures for the convenient and economical handling of traffic.1780 A rate order of the Interstate Commerce Commission which allowed an additional charge to be made for ferrying traffic across the Mississippi to cities on the east bank of the river was sustained over the objection that it gave an unconstitutional preference to ports in Texas.1781 Although there were a few early intimations that this clause was applicable to the States as well as to Congress,1782 the Supreme Court declared emphatically in 1886 that state legislation was unaffected by it.1783 After more than a century, the Court confirmed, over the objection that this clause was offended, the power which the First Congress had exercised1784 in sanctioning the continued supervision and regulation of pilots by the States.1785


Clause 7. No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.


This clause is a limitation upon the power of the Executive Department and does not restrict Congress in appropriating moneys in the Treasury.1786 That body may recognize and pay a claim of an equitable, moral, or honorary nature. When it directs a specific sum to be paid to a certain person, neither the Secretary of the Treasury nor any court has discretion to determine whether the person is entitled to receive it.1787 In making appropriations to pay claims arising out of the Civil War, Congress could, the Court held, lawfully provide that certain persons, i.e., those who had aided the Rebellion, should not be paid out of the funds made available by the general appropriation, but that such persons should seek relief from Congress.1788 The Court has also recognized that Congress has a wide discretion with regard to the extent to which it shall prescribe details of expenditures for which it appropriates funds and has approved the frequent practice of making general appropriations of large amounts to be allotted and expended as directed by designated government agencies. Citing as an example that act of June 17, 1902,1789 where all moneys received from the sale and disposal of public lands in a large number of States and territories were set aside as a special fund to be expended under the direction of the Secretary of the Interior upon such projects as he determined to be practicable and advisable for the reclamation of arid and semi–arid lands within those States and territories, the Court declared: “The constitutionality of this delegation of authority has never been seriously questioned.”1790

Payment of Claims

No officer of the Federal Government is authorized to pay a debt due from the United States, whether reduced to judgment or not, without an appropriation for that purpose.1791 Nor may a gov[p.359]ernment employee, by erroneous advice to a claimant, bind the United States through equitable estoppel principles to pay a claim for which an appropriation has not been made.1792

After the Civil War, a number of controversies arose out of attempts by Congress to restrict the payment of the claims of persons who had aided the Rebellion but had thereafter received a pardon from the President. The Supreme Court held that Congress could not prescribe the evidentiary effect of a pardon in a proceeding in the Court of Claims for property confiscated during the Civil War,1793 but that where the confiscated property had been sold and the proceeds paid into the Treasury, a pardon did not of its own force authorize the restoration of such proceeds.1794 It was within the competence of Congress to declare that the amount due to persons thus pardoned should not be paid out of the Treasury and that no general appropriation should extend to their claims.1795

Clause 8. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

In 1871 the Attorney General of the United States ruled that: “A minister of the United States abroad is not prohibited by the Constitution from rendering a friendly service to a foreign power, even that of negotiating a treaty for it, provided he does not become an officer of that power . . . but the acceptance of a formal commission, as minister plenipotentiary, creates an official relation between the individual thus commissioned and the government which in this way accredits him as its representative,” which is prohibited by this clause of the Constitution.1796


Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and sil[p.360]ver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.


Treaties, Alliances, or Confederations

At the time of the Civil War, this clause was one of the provisions upon which the Court relied in holding that the Confederation formed by the seceding States could not be recognized as having any legal existence.1797 Today, its practical significance lies in the limitations which it implies upon the power of the States to deal with matters having a bearing upon international relations. In the early case of Holmes v. Jennison,1798 Chief Justice Taney invoked it as a reason for holding that a State had no power to deliver up a fugitive from justice to a foreign State. Recently, the kindred idea that the responsibility for the conduct of foreign relations rests exclusively with the Federal Government prompted the Court to hold that, since the oil under the three mile marginal belt along the California coast might well become the subject of international dispute and since the ocean, including this three mile belt, is of vital consequence to the nation in its desire to engage in commerce and to live in peace with the world, the Federal Government has paramount rights in and power over that belt, including full dominion over the resources of the soil under the water area.1799 In Skiriotes v. Florida,1800 the Court, on the other hand, ruled that this clause did not disable Florida from regulating the manner in which its own citizens may engage in sponge fishing outside its territorial waters. Speaking for a unanimous Court, Chief Justice Hughes declared; “When its action does not conflict with federal legislation, the sovereign authority of the State over the conduct of its citizens upon the high seas is analogous to the sovereign authority of the United States over its citizens in like circumstances.”1801


1780 Louisiana Pub. Serv. Comm. v. Texas & N.O.R. Co., 284 U.S. 125, 131 (1931); Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. (59 U.S.) 421, 433 (1856); South Carolina v. Georgia, 93 U.S. 4 (1876). In Williams v. United States, 255 U.S. 336 (1921) the argument that an act of Congress which prohibited interstate transportation of liquor into States whose laws prohibited manufacture or sale of liquor for beverage purposes was repugnant to this clause was rejected.
1781 Louisiana PSC v. Texas & N.O.R. Co., 284 U.S. 125, 132 (1931).
1782 Passenger Cases (Smith v. Turner), 7 How. (48 U.S.) 282, 414 (1849) (opinion of Justice Wayne); cf. Cooley v. Port Wardens, 12 How. (53 U.S.) 299, 314 (1851).
1783 Morgan v. Louisiana, 118 U.S. 455, 467 (1886). See also Munn v. Illinois, 94 U.S. 113, 135 (1877); Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388, 400 (1886).
1784 1 Stat. 53, 54 , Sec. 4 (1789).
1785 Thompson v. Darden, 198 U.S. 310 (1905).
1786 Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937); Knote v. United States, 95 U.S. 149, 154 (1877).
1787 United States v. Price, 116 U.S. 43 (1885); United States v. Realty Company, 163 U.S. 427, 439 (1896); Allen v. Smith, 173 U.S. 389, 393 (1899).
1788 Hart v. United States, 118 U.S. 62, 67 (1886).
1789 32 Stat. 388 (1902).
1790 Cincinnati Soap Co. v. United States, 301 U.S. 308, 322 (1937).
1791 Reeside v. Walker, 11 How. (52 U.S.) 272 (1851).
1792 OPM v. Richmond, 496 U.S. 414 (1990).
1793 United States v. Klein, 13 Wall. (80 U.S.) 128 (1872).
1794 Knote v. United States, 95 U.S. 149, 154 (1877); Austin v. United States, 155 U.S. 417, 427 (1894).
1795 Hart v. United States, 118 U.S. 62, 67 (1886).
1796 13Ops. Atty. Gen.538 (1871).
1797 Williams v. Bruffy, 96 U.S. 176, 183 (1878).
1798 14 Pet. (39 U.S.) 540 (1840).
1799 United States v. California, 332 U.S. 19 (1947).
1800 313 U.S. 69 (1941).
1801 Id., 78–79.
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