Section 9: Powers Denied to Congress

Clause 1. Importation of Slaves

Clause 1. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

In general

The above clause, which sanctioned the importation of slaves by the States for twenty years after the adoption of the Constitution, when considered with the section requiring escaped slaves to be returned to their masters, Art. IV, § 1, cl. 3, was held by Chief Justice Taney in Scott v. Sandford, to show conclusively that such persons and their descendants were not embraced within the term “citizen” as used in the Constitution. Today this ruling is interesting only as an historical curiosity.

Clause 2. Habeas Corpus Suspension

Clause 2. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

In general

This clause is the only place in the Constitution in which the Great Writ is mentioned, a strange fact in the context of the regard with which the right was held at the time the Constitution was written and stranger in the context of the role the right has come to play in the Supreme Court’s efforts to constitutionalize federal and state criminal procedure.

Only the Federal Government and not the States, it has been held obliquely, is limited by the clause.The issue that has always excited critical attention is the authority in which the clause places the power to determine whether the circumstances warrant suspension of the privilege of the Writ.The clause itself does not specify, and while most of the clauses of § 9 are directed at Congress not all of them are.At the Convention, the first proposal of a suspending authority expressly vested “in the legislature” the suspending power,but the author of this proposal did not retain this language when the matter was taken up,the present language then being adopted.Nevertheless, Congress’ power to suspend was assumed in early commentaryand stated in dictum by the Court.President Lincoln suspended the privilege on his own motion in the early Civil War period,but this met with such oppositionthat he sought and received congressional authorization.Three other suspensions were subsequently ordered on the basis of more or less express authorizations from Congress.

When suspension operates, what is suspended? In Ex parte Milligan,the Court asserted that the Writ is not suspended but only the privilege, so that the Writ would issue and the issuing court on its return would determine whether the person applying can proceed, thereby passing on the constitutionality of the suspension and whether the petitioner is within the terms of the suspension.

Restrictions on habeas corpus placed in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) have provided occasion for further analysis of the scope of the Suspension Clause. AEDPA’s restrictions on successive petitions from state prisoners are “well within the compass” of an evolving body of principles restraining “abuse of the writ,” and hence do not amount to a suspension of the writ within the meaning of the Clause.Interpreting IIRIRA so as to avoid what it viewed as a serious constitutional problem, the Court in another case held that Congress had not evidenced clear intent to eliminate federal court habeas corpus jurisdiction to determine whether the Attorney General retained discretionary authority to waive deportation for a limited category of resident aliens who had entered guilty pleas before IIRIRA repealed the waiver authority.“[At] the absolute minimum,” the Court reasoned, “the Suspension Clause protects the writ as it existed in 1789.” “At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been strongest.”

Clause 3. Bills of Attainder and Ex Post Facto Laws

Clause 3. No Bill of Attainder or ex post facto Law shall be passed.

Bills of Attainder

“Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.”The phrase “bill of attainder,” as used in this clause and in clause 1 of § 10, applies to bills of pains and penalties as well as to the traditional bills of attain-der.

The prohibition embodied in this clause is not to be strictly and narrowly construed in the context of traditional forms but is to be interpreted in accordance with the designs of the framers so as to preclude trial by legislature, a violation of the separation of powers concept.The clause thus prohibits all legislative acts, “no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial....”That the Court has applied the clause dynamically is revealed by a consideration of the three cases in which acts of Congress have been struck down as violating it.In Ex parte Garland,the Court struck down a statute that required attorneys to take an oath that they had taken no part in the Confederate rebellion against the United States before they could practice in federal courts. The statute, and a state constitutional amendment requiring a similar oath of persons before they could practice certain professions,were struck down as legislative acts inflicting punishment on a specific group the members of which had taken part in the rebellion and therefore could not truthfully take the oath. The clause then lay unused until 1946 when the Court utilized it to strike down a rider to an appropriations bill forbidding the use of money appropriated therein to pay the salaries of three named persons whom the House of Representatives wished discharged because they were deemed to be “subversive.”

Then, in United States v. Brown,a sharply divided Court held void as a bill of attainder a statute making it a crime for a member of the Communist Party to serve as an officer or as an employee of a labor union. Congress could, Chief Justice Warren wrote for the majority, under its commerce power, protect the economy from harm by enacting a prohibition generally applicable to any person who commits certain acts or possesses certain characteristics making him likely in Congress’ view to initiate political strikes or other harmful deeds and leaving it to the courts to determine whether a particular person committed the specified acts or possessed the specified characteristics. It was impermissible, however, for Congress to designate a class of persons—members of the Communist Party—as being forbidden to hold union office.The dissenters viewed the statute as merely expressing in shorthand the characteristics of those persons who were likely to utilize union responsibilities to accomplish harmful acts; Congress could validly conclude that all members of the Communist Party possessed those characteristics.The majority’s decision in Brown cast in doubt certain statutes and certain statutory formulations that had been held not to constitute bills of attainder. For example, a predecessor of the statute struck down in Brown, which had conditioned a union’s access to the NLRB upon the filing of affidavits by all of the union’s officers attesting that they were not members of or affiliated with the Communist Party, had been upheld,and although Chief Justice Warren distinguished the previous case from Brown on the basis that the Court in the previous decision had found the statute to be preventive rather than punitive,he then proceeded to reject the contention that the punishment necessary for a bill of attainder had to be punitive or retributive rather than preventive,thus undermining the prior decision. Of much greater significance was the effect of the Brown decision on “conflict-of-interest” legislation typified by that upheld in Board of Governors v. Agnew.The statute there forbade any partner or employee of a firm primarily engaged in underwriting securities from being a director of a national bank.Chief Justice Warren distinguished the prior decision and the statute on three grounds from the statute then under consideration. First, the union statute inflicted its deprivation upon the members of a suspect political group in typical bill-of-attainder fashion, unlike the statute in Agnew. Second, in the Agnew statute, Congress did not express a judgment upon certain men or members of a particular group; it rather concluded that any man placed in the two positions would suffer a temptation any man might yield to. Third, Congress established in the Agnew statute an objective standard of conduct expressed in shorthand which precluded persons from holding the two positions.

Apparently withdrawing from the Brown analysis in upholding a statute providing for governmental custody of documents and recordings accumulated during the tenure of former President Nixon,the Court set out a rather different formula for deciding bill of attainder cases.The law specifically applied only to President Nixon and directed an executive agency to assume control over the materials and prepare regulations providing for ultimate public dissemination of at least some of them; the act assumed that it did not deprive the former President of property rights but authorized the award of just compensation if it should be judicially determined that there was a taking. First, the Court denied that the clause denies the power to Congress to burden some persons or groups while not so treating all other plausible individuals or groups; even the present law’s specificity in referring to the former President by name and applying only to him did not condemn the act because he “constituted a legitimate class of one” on whom Congress could “fairly and rationally” focus.Second, even if the statute’s specificity did bring it within the prohibition of the clause, the lodging of Mr. Nixon’s materials with the GSA did not inflict punishment within the meaning of the clause. This analysis was a three-pronged one: 1) the law imposed no punishment traditionally judged to be prohibited by the clause; 2) the law, viewed functionally in terms of the type and severity of burdens imposed, could rationally be said to further nonpunitive legislative purposes; and 3) the law had no legislative record evincing a congressional intent to punish.That is, the Court, looking “to its terms, to the intent expressed by Members of Congress who voted its passage, and to the existence or nonexistence of legitimate explanations for its apparent effect,” concluded that the statute served to further legitimate policies of preserving the availability of evidence for criminal trials and the functioning of the adversary legal system and in promoting the preservation of records of historical value, all in a way that did not and was not intended to punish the former President.

The clause protects individual persons and groups who are vulnerable to nonjudicial determinations of guilt and does not apply to a State; neither does a State have standing to invoke the clause for its citizens against the Federal Government.

Ex Post Facto Laws


Both federal and state governments are prohibited from enacting ex post facto laws,and the Court applies the same analysis whether the law in question is a federal or a state enactment. When these prohibitions were adopted as part of the original Constitution, many persons understood the term ex post facto laws to “embrace all retrospective laws, or laws governing or controlling past transactions, whether . . . of a civil or a criminal nature.”But in the early case of Calder v. Bull,the Supreme Court decided that the phrase, as used in the Constitution, was a term of art that applied only to penal and criminal statutes. But although it is inapplicable to retroactive legislation of any other kind,the constitutional prohibition may not be evaded by giving a civil form to a measure that is essentially criminal.Every law that makes criminal an act which was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution.A prosecution under a temporary statute which was extended before the date originally set for its expiration does not offend this provision even though it is instituted subsequent to the extension of the statute’s duration for a violation committed prior thereto.Since this provision has no application to crimes committed outside the jurisdiction of the United States against the laws of a foreign country, it is immaterial in extradition proceedings whether the foreign law is ex post facto or not.

What Constitutes Punishment

The issue of whether a law is civil or punitive in nature is essentially the same for ex post facto and for double jeopardy analysis.“A court must ascertain whether the legislature intended the statute to establish civil proceedings. A court will reject the legislature’s manifest intent only where a party challenging the Act provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State’s intention.”A statute that has been held to be civil and not criminal in nature cannot be deemed punitive “as applied” to a single individual.

A variety of federal laws have been challenged as ex post facto. A statute that prescribed as a qualification for practice before the federal courts an oath that the attorney had not participated in the Rebellion was found unconstitutional since it operated as a punishment for past acts.But a statute that denied to polygamists the right to vote in a territorial election was upheld even as applied to one who had not contracted a polygamous marriage and had not cohabited with more than one woman since the act was passed, because the law did not operate as an additional penalty for the offense of polygamy but merely defined it as a disqualification of a voter.A deportation law authorizing the Secretary of Labor to expel aliens for criminal acts committed before its passage is not ex post facto since deportation is not a punishment.For this reason, a statutory provision terminating payment of oldage benefits to an alien deported for Communist affiliation also is not ex post facto, for the denial of a non-contractual benefit to a deported alien is not a penalty but a regulation designed to relieve the Social Security System of administrative problems of supervision and enforcement likely to arise from disbursements to beneficiaries residing abroad.Likewise an act permitting the cancellation of naturalization certificates obtained by fraud prior to the passage of the law was held not to impose a punishment, but instead simply to deprive the alien of his ill-gotten privileges.

Change in Place or Mode of Trial

A change of the place of trial of an alleged offense after its commission is not an ex post facto law. If no place of trial was provided when the offense was committed, Congress may designate the place of trial thereafter.A law which alters the rule of evidence to permit a person to be convicted upon less or different evidence than was required when the offense was committed is invalid,but a statute which simply enlarges the class of persons who may be competent to testify in criminal cases is not ex post facto as applied to a prosecution for a crime committed prior to its passage.

Clause 4. Taxes

Clause 4. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

Direct Taxes

The Hylton Case

The crucial problem under clause 4 is to distinguish “direct” from other taxes. In its opinion in Pollock v. Farmers’ Loan & Trust Co., the Court declared: “It is apparent . . . that the distinction between direct and indirect taxation was well understood by the framers of the Constitution and those who adopted it.”Against this confident dictum may be set the following brief excerpt from Madison’s Notes on the Convention: “Mr. King asked what was the precise meaning of direct taxation? No one answered.”The first case to come before the Court on this issue was Hylton v. United States,which was decided early in 1796. Congress has levied, according to the rule of uniformity, a specific tax upon all carriages, for the conveyance of persons, which were to be kept by, or for any person, for his own use, or to be let out for hire, or for the conveying of passengers. In a fictitious statement of facts, it was stipulated that the carriages involved in the case were kept exclusively for the personal use of the owner and not for hire. The principal argument for the constitutionality of the measure was made by Hamilton, who treated it as an “excise tax,”while Madison both on the floor of Congress and in correspondence attacked it as “direct” and so void, inasmuch as it was levied without apportionment.The Court, taking the position that the direct tax clause constituted in practical operation an exception to the general taxing powers of Congress, held that no tax ought to be classified as “direct” which could not be conveniently apportioned, and on this basis sustained the tax on carriages as one on their “use” and therefore an “excise.” Moreover, each of the judges advanced the opinion that the direct tax clause should be restricted to capitation taxes and taxes on land, or that at most, it might cover a general tax on the aggregate or mass of things that generally pervade all the States, especially if an assessment should intervene, while Justice Paterson, who had been a member of the Federal Convention, testified to his recollection that the principal purpose of the provision had been to allay the fear of the Southern States lest their Negroes and land should be subjected to a specific tax.

From the Hylton to the Pollock Case

The result of the Hylton case was not challenged until after the Civil War. A number of the taxes imposed to meet the demands of that war were assailed during the postwar period as direct taxes, but without result. The Court sustained successively, as “excises” or “duties,” a tax on an insurance company’s receipts for premiums and assessments;a tax on the circulating notes of state banks,an inheritance tax on real estate,and finally a general tax on incomes.In the last case, the Court took pains to state that it regarded the term “direct taxes” as having acquired a definite and fixed meaning, to wit, capitation taxes, and taxes on land.Then, almost one hundred years after the Hylton case, the famous case of Pollock v. Farmers’ Loan & Trust Co.arose under the Income Tax Act of 1894.Undertaking to correct “a century of error,” the Court held, by a vote of five-to- four, that a tax on income from property was a direct tax within the meaning of the Constitution and hence void because not apportioned according to the census.

Restriction of the Pollock Decision

The Pollock decision encouraged taxpayers to challenge the right of Congress to levy by the rule of uniformity numerous taxes that had always been reckoned to be excises. But the Court evinced a strong reluctance to extend the doctrine to such exactions. Purporting to distinguish taxes levied “because of ownership” or “upon property as such” from those laid upon “privileges,”it sustained as “excises” a tax on sales on business exchanges,a succession tax which was construed to fall on the recipients of the property transmitted rather than on the estate of the decedent,and a tax on manufactured tobacco in the hands of a dealer, after an excise tax had been paid by the manufacturer.Again, in Thomas v. United States,the validity of a stamp tax on sales of stock certificates was sustained on the basis of a definition of “duties, im-posts and excises.” These terms, according to the Chief Justice, “were used comprehensively to cover customs and excise duties imposed on importation, consumption, manufacture and sale of certain commodities, privileges, particular business transactions, vocations, occupations and the like.”On the same day, it ruled, in Spreckels Sugar Refining Co. v. McClain,that an exaction, denominated a special excise tax, imposed on the business of refining sugar and measured by the gross receipts thereof, was in truth an excise and hence properly levied by the rule of uniformity. The lesson of Flint v. Stone Tracy Co.was the same. In the Flint case, what was in form an income tax was sustained as a tax on the privilege of doing business as a corporation, the value of the privilege being measured by the income, including income from investments. Similarly, in Stanton v. Baltic Mining Co.,a tax on the annual production of mines was held to be “independently of the effect of the operation of the Sixteenth Amendment . . . not a tax upon property as such because of its ownership, but a true excise levied on the results of the business of carrying on mining operations.”

A convincing demonstration of the extent to which the Pol-lock decision had been whittled down by the time the Sixteenth Amendment was adopted is found in Billings v. United States.In challenging an annual tax assessed for the year 1909 on the use of foreign built yachts—a levy not distinguishable in substance from the carriage tax involved in the Hylton case as construed by the Supreme Court—counsel did not even suggest that the tax should be classed as a direct tax. Instead, he based his argument that the exaction constituted a taking of property without due process of law upon the premise that it was an excise, and the Supreme Court disposed of the case upon the same assumption.

In 1921, the Court cast aside the distinction drawn in Knowlton v. Moore between the right to transmit property on the one hand and the privilege of receiving it on the other, and sustained an estate tax as an excise. “Upon this point,” wrote Justice Holmes for a unanimous Court, “a page of history is worth a volume of logic.”This proposition being established, the Court had no difficulty in deciding that the inclusion in the computation of the estate tax of property held as joint tenants,or as tenants by the entirety,or the entire value of community property owned by husband and wife,or the proceeds of insurance upon the life of the decedent,did not amount to direct taxation of such property. Similarly, it upheld a graduated tax on gifts as an excise, saying that it was “a tax laid only upon the exercise of a single one of those powers incident to ownership, the power to give the property owned to another.”Justice Sutherland, speaking for himself and two associates, urged that “the right to give away one’s property is as fundamental as the right to sell it or, indeed, to possess it.”


The power of Congress to levy direct taxes is not confined to the States represented in that body. Such a tax may be levied in proportion to population in the District of Columbia.A penalty imposed for nonpayment of a direct tax is not a part of the tax itself and hence is not subject to the rule of apportionment. Accordingly, the Supreme Court sustained the penalty of fifty percent, which Congress exacted for default in the payment of the direct tax on land in the aggregate amount of twenty million dollars that was levied and apportioned among the States during the Civil War.

Clause 5. Duties on Exports from States

Clause 5. No Tax or Duty shall be laid on Articles exported from any State.

Taxes on Exports

This prohibition applies only to the imposition of duties on goods by reason of exportation.The word “export” signifies goods exported to a foreign country, not to an unincorporated territory of the United States.A general tax laid on all property alike, including that intended for export, is not within the prohibition, if it is not levied on goods in course of exportation nor because of their intended exportation.Continuing its refusal to modify its export clause jurisprudence,the Court held unconstitutional the Harbor Maintenance Tax (HMT) under the export clause insofar as the tax was applied to goods loaded at United States ports for export. The HMT required shippers to pay a uniform charge on commercial cargo shipped through the Nation’s ports. The clause, said the Court, “categorically bars Congress from imposing any tax on exports.”However, the clause does not interdict a “user fee,” that is, a charge that lacks the attributes of a generally applicable tax or duty and is designed to compensate for government supplied services, facilities, or benefits, and it was that defense to which the Government repaired once it failed to obtain a modification of the rules under the clause. But the HMT bore the indicia of a tax. It was titled as a tax, described as a tax in the law, and codified in the Internal Revenue Code. Aside from labels, however, courts must look to how things operate, and the HMT did not qualify as a user fee. It did not represent compensation for services rendered. The value of export cargo did not correspond reliably with the federal harbor services used or usable by the exporter. Instead, the extent and manner of port use depended on such factors as size and tonnage of a vessel and the length of time it spent in port.The HMT was thus a tax, and therefore invalid. Where the sale to a commission merchant for a foreign consignee was consummated by delivery of the goods to an exporting carrier, the sale was held to be a step in the exportation and hence exempt from a general tax on sales of such commodity.The giving of a bond for exportation of distilled liquor was not the commencement of exportation so as to exempt from an excise tax spirits that were not exported pursuant to such bond.A tax on the income of a corporation derived from its export trade was not a tax on “articles exported” within the meaning of the Constitution.

In United States v. IBM Corp.,the Court declined the Government’s argument that it should refine its export-tax-clause jurisprudence. Rather than read the clause as a bar on any tax that applies to a good in the export stream, the Government contended that the Court should bring this clause in line with the import-export clauseand with dormant- commerce-clause doctrine. In that view, the Court should distinguish between discriminatory and nondiscriminatory taxes on exports. But the Court held that sufficient differences existed between the export clause and the other two clauses, so that its bar should continue to apply to any and all taxes on goods in the course of exportation.

Stamp Taxes

A stamp tax imposed on foreign bills of lading,charter parties,or marine insurance policies,was in effect a tax or duty upon exports, and so void; but an act requiring the stamping of all packages of tobacco intended for export in order to prevent fraud was held not to be forbidden as a tax on exports.

Clause 6. Preference to Ports

Clause 6. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another.

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.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.Although there were a few early intimations that this clause was applicable to the States as well as to Congress,the Supreme Court declared emphatically in 1886 that state legislation was unaffected by it.After more than a century, the Court confirmed, over the objection that this clause was offended, the power which the First Congress had exercisedin sanctioning the continued supervision and regulation of pilots by the States.

Clause 7. Appropriations and Accounting of Public Money

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.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.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.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 the act of June 17, 1902,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.”

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.Nor may a government 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.

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,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.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.

Clause 8. Titles of Nobility; Presents

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 general

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.


60 U.S. (19 How.) 39 3, 411 (1857).


Infra discussion under Article III, “Habeas Corpus: Scope of Writ”.

Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917).

In form, of course, clause 2 is a limitation of power, not a grant of power, and is in addition placed in a section of limitations. It might be argued, therefore, that the power to suspend lies elsewhere and that this clause limits that authority. This argument is opposed by the little authority there is on the subject. 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 213 (Luther Martin ed., 1937); Ex parte Merryman, 17 Fed. Cas. 144, 148 (No. 9487) (C.C.D. Md. 1861); but cf. 3 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 464 (Edmund Randolph, 2d ed. 1836). At the Convention, Gouverneur Morris proposed the language of the present clause: the first section of the clause, down to “unless” was adopted unanimously, but the second part, qualifying the prohibition on suspension was adopted over the opposition of three States. 2 M. FARRAND, at 438. It would hardly have been meaningful for those States opposing any power to suspend to vote against this language if the power to suspend were conferred elsewhere.

Cf. Clauses 7, 8.


Id. at 438.



Ex parte Bollman, 8 U.S. (4 Cr.) 75, 101 (1807).


Including a finding by Chief Justice Taney on circuit that the President’s action was invalid. Ex parte Merryman, 17 Fed. Cas. 144 (No. 9487) (C.C.D. Md. 1861).

Act of March 3, 1863, 1, 12 Stat. 755. See Sellery, Lincoln’s Suspension of Habeas Corpus as Viewed by Congress, 1 U. WIS. HISTORY BULL. 213 (1907).

The privilege of the Writ was suspended in nine counties in South Carolina in order to combat the Ku Klux Klan, pursuant to Act of April 20, 1871, 4, 17 Stat. 14. It was suspended in the Philippines in 1905, pursuant to the Act of July 1, 1902, 5, 32 Stat. 692. Cf. Fisher v. Baker, 203 U.S. 174 (1906). Finally, it was suspended in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act, 67, 31 Stat. 153 (1900). Cf. Duncan v. Kahanamoku, 327 U.S. 304 (1946). For the problem of de facto suspension through manipulation of the jurisdiction of the federal courts, see infra discussion under Article III, The Theory of Plenary Congressional Control.

71 U.S. (4 Wall.) 2, 130 –131 (1866).

Felker v. Turpin, 518 U.S. 651, 664 (1996).

INS v. St. Cyr, 533 U.S. 289 (2001).

533 U.S. at 301.


Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867); cf. United States v. Brown, 381 U.S. 437 , 441 –442, (1965).

United States v. Brown, 381 U.S. 437, 442 –446 (1965). Four dissenting Justices, however, denied that any separation of powers concept underlay the clause. Id. at 472–73.

United States v. Lovett, 328 U.S. 303, 315 (1946).

For a rejection of the Court’s approach and a plea to adhere to the traditional concept, see id. at 318 (Justice Frankfurter concurring).

71 U.S. (4 Wall.) 333 (1867).

Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867).

United States v. Lovett, 328 U.S. 303 (1946).

381 U.S. 437 (1965).

The Court of Appeals had voided the statute as an infringement of First Amendment expression and association rights, but the Court majority did not choose to utilize this ground. 334 F. 2d 488 (9th Cir. 1964). However, in United States v. Robel, 389 U.S. 258 (1967), a very similar statute making it unlawful for any member of a “Communist-action organization” to be employed in a defense facility was struck down on First Amendment grounds and the bill of attainder argument was ignored.

United States v. Brown, 381 U.S. 437, 462 (1965) (Justices White, Clark, Harlan, and Stewart dissenting).

American Communications Ass’n v. Douds, 339 U.S. 382 (1950).

Douds, 339 U.S. at 413, 414, cited in United States v. Brown, 381 U.S. 437, 457 )–458 (1965).

Brown, 381 U.S. at 458–61.

329 U.S. 441 (1947).

12 U.S.C. § 78.

The Presidential Recordings and Materials Preservation Act, P.L. 93–526, 88 Stat. 1695 (1974), note following 44 U.S.C. § 2107. For an application of this statute, see Nixon v. Warner Communications, 435 U.S. 589 (1978).

Nixon v. Administrator of General Services, 433 U.S. 425, 468 –484 (1977). Justice Stevens’ concurrence is more specifically directed to the facts behind the statute than is the opinion of the Court, id. at 484, and Justice White, author of the dissent in Brown, merely noted he found the act nonpunitive. Id. at 487. Chief Justice Burger and Justice Rehnquist dissented. Id. at 504, 536–45. Adding to the impression of a departure from Brown is the quotation in the opinion of the Court at several points of the Brown dissent, id. at 470 n.31, 471 n.34, while the dissent quoted and relied on the opinion of the Court in Brown. Id. at 538, 542.

433 U.S. at 472. Justice Stevens carried the thought further, although in the process he severely limited the precedential value of the decision. Id. at 484.

433 U.S. at 473–84.

South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).

The prohibition on state ex post facto legislation appears in Art. I, § 10, cl. 1.


3 U.S. (3 Dall.) 38 6, 393 (1798).

Bankers Trust Co. v. Blodgett, 260 U.S. 647, 652 (1923).

Burgess v. Salmon, 97 U.S. 381 (1878).

Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Ex parte Garland, 71 U.S. (4 Wall.) 333 , 377 (1867); Burgess v. Salmon, 97 U.S. 381 , 384 (1878).

United States v. Powers, 307 U.S. 214 (1939).

Neely v. Henkel, 180 U.S. 109 , 123 (1901). Cf. In re Yamashita, 327 U.S. 1 , 26 (1946) (dissenting opinion of Justice Murphy); Hirota v. MacArthur, 338 U.S. 197 , 199 (1948) (concurring opinion of Justice Douglas).

Kansas v. Hendricks, 521 U.S. 346 (1997); Seling v. Young, 531 U.S. 250 (2001).

Seling v. Young, 531 U.S. 250 , 261 (2001) (interpreting Art. I, § 10).

Seling v. Young, 531 U.S. at 263 (2001).

Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867).

Murphy v. Ramsey, 114 U.S. 15 (1885).

Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams, 228 U.S. 585 (1913); Marcello v. Bonds, 349 U.S. 302 (1955). Justices Black and Douglas, reiterating in Lehman v. United States ex rel. Carson, 353 U.S. 685 , 690 –691 (1957), their dissent from the premise that the ex post facto clause is directed solely to penal legislation, disapproved a holding that an immigration law, enacted in 1952, 8 U.S.C. § 1251, which authorized deportation of an alien who, in 1945, had acquired a status of nondeportability under pre-existing law is valid. In their opinion, to banish, in 1957, an alien who had lived in the United States for almost 40 years, for an offense committed in 1936, and for which he already had served a term in prison, was to subject him to new punishment retrospectively imposed.

Flemming v. Nestor, 363 U.S. 603 (1960).

Johannessen v. United States, 225 U.S. 227 (1912).

Cook v. United States, 138 U.S. 157, 183 (1891).

Calder v. Bull, 3 U.S. (3 Dall.) 386 , 390 (1798).

Hopt v. Utah, 110 U.S. 574, 589 (1884).

157 U.S. 429, 573 (1895).

J. MADISON, THE DEBATES IN THE FEDERAL CONVENTION OF 1787 435 ()G. Hunt & J. Scott eds., Greenwood Press ed. 1970).

3 U.S. (3 Dall.) 171 (1796).

THE WORKS OF ALEXANDER HAMILTON 845 (J. Hamilton ed., 1851). “If the meaning of the word excise is to be sought in the British statutes, it will be found to include the duty on carriages, which is there considered as an excise, and then must necessarily be uniform and liable to apportionment; consequently, not a direct tax.”


3 U.S. (3 Dall.) 171, 177 (1796).

Pacific Ins. Co. v. Soule, 74 U.S. (7 Wall.) 434 (1869).

Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869).

Scholey v. Rew, 90 U.S. (23 Wall.) 331 (1875).

Springer v. United States, 102 U.S. 586 (1881).

102 U.S. at 602.

157 U.S. 429 (1895); 158 U.S. 601 (1895).

28 Stat. 509, 553 (1894).

Stanton v. Baltic Mining Co., 240 U.S. 103 (1916); Knowlton v. Moore, 178 U.S. 41 , 80 (1900).

Nicol v. Ames, 173 U.S. 509 (1899).

Knowlton v. Moore, 178 U.S. 41 (1900).

Patton v. Brady, 184 U.S. 602 (1902).

192 U.S. 363 (1904).

192 U.S. at 370.

192 U.S. 397 (1904).

220 U.S. 107 (1911).

240 U.S. 103 (1916).

240 U.S. at 114.

232 U.S. 261 (1914).

New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

Phillips v. Dime Trust & S.D. Co., 284 U.S. 160 (1931).

Tyler v. United States, 281 U.S. 497 (1930).

Fernandez v. Wiener, 326 U.S. 340 (1945).

Chase Nat’l Bank v. United States, 278 U.S. 327 (1929); United States v. Manufacturers Nat’l Bank, 363 U.S. 194, 198 –201 (1960).

Bromley v. McCaughn, 280 U.S. 124, 136 (1929). See also Helvering v. Bullard, 303 U.S. 297 (1938).

Bromley v. McCaughn, 280 U.S. 124, 140 (1929).

Loughborough v. Blake, 18 U.S. (5 Wheat.) 317(1820).

De Treville v. Smalls, 98 U.S. 517, 527 (1879).

Turpin v. Burgess, 117 U.S. 504 , 507 (1886). Cf. Almy v. California, 65 U.S. (24 How.) 169, 174 (1861).

Dooley v. United States, 183 U.S. 151, 154 (1901).

Cornell v. Coyne, 192 U.S. 418, 428 (1904); Turpin v. Burgess, 117 U.S. 504 , 507 (1886).

See United States v. IBM, 517 U.S. 843, 850 –61 (1996).

United States v. United States Shoe Corp., 523 U.S. 360, 363 (1998).

523 U.S. at 367–69.

Spalding & Bros. v. Edwards, 262 U.S. 66 (1923).

Thompson v. United States, 142 U.S. 471 (1892).

Peck & Co. v. Lowe, 247 U.S. 165 (1918); National Paper Co. v. Bowers, 266 U.S. 373 (1924).

517 U.S. 843 (1996).

Article I, § 10, cl. 2, applying to the States.

Fairbank v. United States, 181 U.S. 283 (1901).

United States v. Hvoslef, 237 U.S. 1 (1915).

Thames & Mersey Inc. v. United States, 237 U.S. 19(1915). In United States v. IBM Corp., 517 U.S. 843 (1996), the Court adhered to Thames & Mersey, and held unconstitutional a federal excise tax upon insurance policies issued by foreign countries as applied to coverage for exported products. The Court admitted that one could question the earlier case’s equating of a tax on the insurance of exported goods with a tax on the goods themselves, but it observed that the Government had chosen not to present that argument. Principles of stare decisis thus cautioned observance of the earlier case. Id. at 854–55. The dissenters argued that the issue had been presented and should be decided by overruling the earlier case. Id. at 863 (Justices Kennedy and Ginsburg dissenting).

Pace v. Burgess, 92 U.S. 372 (1876); Turpin v. Burgess, 117 U.S. 504, 505 (1886).

Louisiana PSC v. Texas & N.O. R.R., 284 U.S. 125, 131 (1931); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 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.

Louisiana PSC v. Texas & N.O. R.R., 284 U.S. 125, 132 (1931).

Passenger Cases (Smith v. Turner), 48 U.S. (7 How.) 282, 414 (1849) (opinion of Justice Wayne); cf. Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 , 314 (1851).

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).

1 Stat. 53, 54, § 4 (1789).

Thompson v. Darden, 198 U.S. 310 (1905).

Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937); Knote v. United States, 95 U.S. 149, 154 (1877).

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).

Hart v. United States, 118 U.S. 62, 67 (1886).

32 Stat. 388 (1902).

Cincinnati Soap Co. v. United States, 301 U.S. 308, 322 (1937).

Reeside v. Walker, 52 U.S. (11 How.) 272 (1851).

OPM v. Richmond, 496 U.S. 414 (1990).

United States v. Klein, 80 U.S. (13 Wall.) 128 (1872).

Knote v. United States, 95 U.S. 149, 154 (1877); Austin v. United States, 155 U.S. 417, 427 (1894).

Hart v. United States, 118 U.S. 62, 67 (1886).

13 Ops. Atty. Gen. 538 (1871).