The Constitution of the United States of America: Analysis and Interpretation Part 14

The object of the clause requiring the keeping of a Journal is "to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective const.i.tuents."[176] When the Journal of either House is put in evidence for the purpose of determining whether the yeas and nays, were ordered, and what the vote was on any particular question, the Journal must be presumed to show the truth, and a statement therein that a quorum was present, though not disclosed by the yeas and nays, is final.[177] But when an enrolled bill, which has been signed by the Speaker of the House and by the President of the Senate, in open session, receives the approval of the President and is deposited in the Department of State, its authentication as a bill that has pa.s.sed Congress is complete and unimpeachable, and it is not competent to show from the Journals of either House that an act so authenticated, approved, and deposited, in fact omitted one section actually pa.s.sed by both Houses of Congress.[178]

Section 6. Clause 1. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Compensation, Immunities and Disabilities of Members

WHEN THE PAY STARTS

A Member of Congress who receives his certificate of admission, and is seated, allowed to vote, and serve on committees, is _prima facie_ ent.i.tled to the seat and salary, even though the House subsequently declares his seat vacant. The one who contested the election and was subsequently chosen to fill the vacancy is ent.i.tled to salary only from the time the compensation of such "predecessor" has ceased.[179]

PRIVILEGE FROM ARREST

This clause is practically obsolete. It applies only to arrests in civil suits, which were still common in this country at the time the Const.i.tution was adopted.[180] It does not apply to service of process in either civil[181] or criminal cases.[182] Nor does it apply to arrest in any criminal case. The phrase "treason, felony or breach of the peace" is interpreted to withdraw all criminal offenses from the operation of the privilege.[183]

THE PRIVILEGE OF SPEECH OR DEBATE

The protection of this clause is not limited to words spoken in debate, but is applicable to written reports, to resolutions offered, to the act of voting and to all things generally done in a session of the House by one of its members in relation to the business before it.[184] In Kilbourn _v._ Thompson[185] the Supreme Court quoted with approval the following excerpt from the opinion of Chief Justice Parsons in the early Ma.s.sachusetts of Coffin _v._ Coffin,[186] giving a broad scope to the immunity of legislators: "'These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I, therefore, think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office. And I would define the article as securing to every member exemption from prosecution for everything said or done by him as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular, according to the rules of the House, or irregular and against their rules. I do not confine the member to his place in the House; and I am satisfied that there are cases in which he is ent.i.tled to this privilege when not within the walls of the representatives' chamber.'"[187] Accordingly the Court ruled that Members of the House of Representatives were not liable to a suit for false imprisonment by reason of their initiation and prosecution of the legislative proceedings under which plaintiff was arrested.[188] Nor does the claim of an unworthy purpose destroy the privilege.

"Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators".[189]

Clause 2. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

INCOMPATIBLE OFFICES

According to legislative precedents, visitors to academies, regents, directors and trustees of public inst.i.tutions, and members of temporary commissions who receive no compensation as such, are not officers within the const.i.tutional inhibition of section 6.[190] Government contractors and federal officers who resign before presenting their credentials may be seated as Members of Congress.[191] In 1909, after having increased the salary of the Secretary of State,[192] Congress reduced it to the former figure so that a Member of the Senate at the time the increase was voted would be eligible for that office.[193] The first clause again became a subject of discussion in 1937, when Justice Black was appointed to the Supreme Court in face of the fact that Congress had recently improved the financial position of Justices retiring at seventy and the term for which Mr. Black had been elected to the Senate from Alabama in 1932 had still some time to run. The appointment was defended by the argument that inasmuch as Mr. Black was only fifty-one years old at the time and so would be ineligible for the "increased emolument" for nineteen years, it was not _as to him_ an increased emolument.[194]

Section 7. Clause 1. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Clause 2. Every Bill which shall have pa.s.sed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pa.s.s the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

THE LEGISLATIVE PROCESS

REVENUE BILLS

Only bills to levy taxes in the strict sense of the word are comprehended by the phrase "all bills for raising revenue"; bills for other purposes, which incidentally create revenue, are not included.[195] An act providing a national currency secured by a pledge of bonds of the United States, which, "in the furtherance of that object, and also to meet the expenses attending the execution of the act," imposed a tax on the circulating notes of national banks was held not to be a revenue measure which must originate in the House of Representatives.[196] Neither was a bill which provided that the District of Columbia should raise by taxation and pay to designated railroad companies a specified sum for the elimination of grade crossings and the construction of a union railway station.[197] The subst.i.tution of a corporation tax for an inheritance tax,[198] and the addition of a section imposing an excise tax upon the use of foreign built pleasure yachts,[199] have been held to be within the Senate's const.i.tutional power to propose amendments.

APPROVAL BY THE PRESIDENT

The President is not restricted to signing a bill on a day when Congress is in session.[200] He may sign within ten days (Sundays excepted) after the bill is presented to him, even if that period extends beyond the date of the final adjournment of Congress.[201] His duty in case of approval of a measure is merely to sign it. He need not write on the bill the word "approved" nor the date. If no date appears on the face of the roll, the Court may ascertain the fact by resort to any source of information capable of furnishing a satisfactory answer.[202] A bill becomes law on the date of its approval by the President.[203] When no time is fixed by the act it is effective from the date of its approval,[204] which usually is taken to be the first moment of the day, fractions of a day being disregarded.[205]

THE VETO POWER

If Congress adjourns within ten days (Sundays excepted) of the presentation of a bill to the President, the return of the bill is prevented within the meaning of this clause. Consequently it does not become law if the President does not sign it, but succ.u.mbs to what in Congressional parlance is called a "pocket veto."[206] But a brief recess by the House in which a bill originated, while the Congress is still in session, does not prevent the return of a bill by delivery to one of the officers of the House who has implied authority to receive it.[207] The two-thirds vote of each House required to pa.s.s a bill over a veto means two-thirds of a quorum.[208] After a bill becomes law the President has no authority to repeal it. a.s.serting this truism, the Supreme Court held in The Confiscation Cases,[209] that the immunity proclamation issued by the President in 1868 did not require reversal of a decree condemning property which had been seized under the Confiscation Act of 1862.[210]

Clause 3. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repa.s.sed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

PRESENTATION OF RESOLUTIONS

The sweeping nature of this obviously ill-considered provision is emphasized by the single exception specified to its operation. Actually, it was impossible from the first to give it any such scope. Otherwise the intermediate stages of the legislative process would have been bogged down hopelessly, not to mention other highly undesirable results.

In a report rendered by the Senate Judiciary Committee in 1897 it was shown that the word "necessary" in the clause had come in practice to refer "to the necessity occasioned by the requirement of other provisions of the Const.i.tution, whereby every exercise of 'legislative powers' involves the concurrence of the two Houses"; or more briefly, "necessary" here means necessary if an "order, resolution, or vote" is to have the force of law. Such resolutions have come to be termed "joint resolutions" and stand on a level with "bills," which if "enacted"

become Statutes. But "votes" taken in either House preliminary to the final pa.s.sage of legislation need not be submitted to the President, nor resolutions pa.s.sed by the Houses concurrently with a view to expressing an opinion or to devising a common program of action (e.g., the concurrent resolutions by which during the fight over Reconstruction the Southern States were excluded from representation in the House and Senate, the Joint Committee on Reconstruction containing members from both Houses was created, etc.), or to directing the expenditure of money appropriated to the use of the two Houses.[211] Within recent years the concurrent resolution has been put to a new use--the termination of powers delegated to the Chief Executive, or the disapproval of particular exercises of power by him. Most of the important legislation enacted for the prosecution of World War II provided that the powers granted to the President should come to an end upon adoption of concurrent resolutions to that effect.[212] Similarly, measures authorizing the President to reorganize executive agencies have provided that a Reorganization Plan promulgated by him should be reported by Congress and should not become effective if one[213] or both[214] Houses adopted a resolution disapproving it. Also, it was settled as early as 1789 that resolutions of Congress proposing amendments to the Const.i.tution need not be submitted to the President, the Bill of Rights having been referred to the States without being laid before President Washington for his approval--a procedure which the Court ratified in due course.[215]

Section 8. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

The Taxing-Spending Power

KINDS OF TAXES PERMITTED

By the terms of the Const.i.tution, the power of Congress to levy taxes is subject to but one exception and two qualifications. Articles exported from any State may not be taxed at all. Direct taxes must be levied by the rule of apportionment and indirect taxes by the rule of uniformity.

The Court has emphasized the sweeping character of this power by saying from time to time that it "reaches every subject,"[216] that it is "exhaustive"[217] or that it "embraces every conceivable power of taxation."[218] Despite these generalizations, the power has been at times substantially curtailed by judicial decision with respect to the subject matter of taxation, the manner in which taxes are imposed, and the objects for which they may be levied.

DECLINE OF THE FORBIDDEN SUBJECT MATTER TEST

In recent years the Supreme Court has restored to Congress the power to tax most of the subject matter which had previously been withdrawn from its reach by judicial decision. The holding of Evans _v._ Gore[219] and Miles _v._ Graham[220] that the inclusion of the salaries received by federal judges in measuring the liability for a nondiscriminatory income tax violated the const.i.tutional mandate that the compensation of such judges should not be diminished during their continuance in office was repudiated in O'Malley _v._ Woodrough.[221] The specific ruling of Collector _v._ Day[222] that the salary of a State officer is immune to federal income taxation also has been overruled.[223] But the principle underlying that decision--that Congress may not lay a tax which would impair the sovereignty of the States--is still recognized as retaining some vitality.

THE RISE AND FALL OF COLLECTOR _v._ DAY

Collector _v._ Day was decided in 1871 while the country was still in the throes of reconstruction. As noted by Chief Justice Stone in a footnote to his opinion in Helvering _v._ Gerhardt,[224] the Court had not then determined how far the Civil War amendments had broadened the federal power at the expense of the States; the fact that the taxing power had recently been used with destructive effect upon notes issued by State banks[225] suggested the possibility of similar attacks upon the existence of the States themselves. Two years later the Court took the logical further step of holding that the federal income tax could not be imposed on income received by a munic.i.p.al corporation from its investments.[226] A far-reaching extension of private immunity was granted in Pollock _v._ Farmers Loan and Trust Co.,[227] where interest received by a private investor on State or munic.i.p.al bonds was held to be exempt from federal taxation. As the apprehensions of this era subsided, the doctrine of these cases was pushed into the background. It never received the same wide application as did McCulloch _v._ Maryland[228] in curbing the power of the States to tax operations or instrumentalities of the Federal Government. Only once since the turn of the century has the national taxing power been further narrowed in the name of Dual Federalism. In 1931 the Court held that a federal excise tax was inapplicable to the manufacture and sale to a munic.i.p.al corporation of equipment for its police force.[229] Justices Stone and Brandeis dissented from this decision and it is doubtful whether it would be followed today.

FEDERAL TAXATION OF STATE INTERESTS

Within a decade after the Pollock decision the retreat from Collector _v._ Day began. In 1903, a succession tax upon a bequest to a munic.i.p.ality for public purposes was upheld on the ground that the tax was payable out of the estate before distribution to the legatee.

Looking to form and not to substance, in disregard of the mandate of Brown _v._ Maryland,[230] a closely divided Court declined to "regard it as a tax upon the munic.i.p.ality, though it might operate incidentally to reduce the bequest by the amount of the tax."[231] When South Carolina embarked upon the business of dispensing alcoholic beverages, its agents were held to be subject to the national internal revenue tax, the ground of the holding being that in 1787 such a business was not regarded as one of the ordinary functions of government.[232] Another decision marking a clear departure from the logic of Collector _v._ Day was Flint _v._ Stone Tracy Company,[233] where the Court sustained an act of Congress taxing the privilege of doing business as a corporation, the tax being measured by the income. The argument that the tax imposed an unconst.i.tutional burden on the exercise by a State of its reserved power to create corporate franchises was rejected, partly in consideration of the principle of national supremacy, and partly on the ground that the corporate franchises were private property. This case also qualified Pollock _v._ Farmers Loan and Trust Company to the extent of allowing interest on State bonds to be included in measuring the tax on the corporation. Subsequent cases have sustained an estate tax on the net estate of a decedent, including State bonds;[234] excise taxes on the transportation of merchandise in performance of a contract to sell and deliver it to a county;[235] on the importation of scientific apparatus by a State university;[236] on admissions to athletic contests sponsored by a State inst.i.tution, the net proceeds of which were used to further its educational program;[237] and on admissions to recreational facilities operated on a nonprofit basis by a munic.i.p.al corporation.[238] Income derived by independent engineering contractors from the performance of State functions;[239] the compensation of trustees appointed to manage a street railway taken over and operated by a State;[240] profits derived from the sale of State bonds;[241] or from oil produced by lessees of State lands;[242] have all been held to be subject to federal taxation despite a possible economic burden on the State.

IS ANY IMMUNITY LEFT THE STATES?

Although there have been sharp differences of opinion among members of the Supreme Court in recent cases dealing with the tax immunity of State functions and instrumentalities, it has been stated that "all agree that not all of the former immunity is gone."[243] Twice the Court has made an effort to express its new point of view in a statement of general principles by which the right to such immunity shall be determined.

However, the failure to muster a majority in concurrence with any single opinion in the more recent of these cases leaves the question very much in doubt. In Helvering _v._ Gerhardt,[244] where, without overruling Collector _v._ Day, it narrowed the immunity of salaries of State officers and federal income taxation, the Court announced "* * *, two guiding principles of limitation for holding the tax immunity of State instrumentalities to its proper function. The one, dependent upon the nature of the function being performed by the State or in its behalf, excludes from the immunity activities thought not to be essential to the preservation of State governments even though the tax be collected from the State treasury. * * * The other principle, exemplified by those cases where the tax laid upon individuals affects the State only as the burden is pa.s.sed on to it by the taxpayer, forbids recognition of the immunity when the burden on the State is so speculative and uncertain that if allowed it would restrict the federal taxing power without affording any corresponding tangible protection to the State government; even though the function be thought important enough to demand immunity from a tax upon the State itself, it is not necessarily protected from a tax which well may be substantially or entirely absorbed by private persons."[245]