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This publication supplements Senate Document 108–17, The Constitution of the United States of America: Analysis and Interpretation—it should be inserted into the pocket on the inside back cover of that volume 108TH CONGRESS DOCUMENT " SENATE ! 2d Session No. 108–19 THE CONSTITUTION OF THE UNITED STATES OF AMERICA ANALYSIS AND INTERPRETATION 2004 SUPPLEMENT ANALYSIS OF CASES DECIDED BY THE SUPREME COURT OF THE UNITED STATES TO JUNE 29, 2004 PREPARED BY THE CONGRESSIONAL RESEARCH SERVICE LIBRARY OF CONGRESS JOHNNY H. KILLIAN GEORGE A. COSTELLO KENNETH R. THOMAS CO-EDITORS HENRY COHEN ROBERT MELTZ CONTRIBUTORS U.S. GOVERNMENT PRINTING OFFICE 97–081PS WASHINGTON : 2004 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00001 Fmt 8224 Sfmt 8224 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP SENEAGLE VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00002 Fmt 8224 Sfmt 8224 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP 1 1 Sabri v. United States, 124 S. Ct. 1941, 1946 (2004). 2 124 S. Ct. at 1946. ARTICLE I Article I, § 8, cl. 1. Power to Tax and Spend SPENDING FOR THE GENERAL WELFARE Scope of the Power [Add new paragraph at end of section:] As with its other powers, Congress may enact legislation ‘‘necessary and proper’’ to effectuate its purposes in taxing and spending. In upholding a law making it a crime to bribe state and local officials who administer programs that receive federal funds, the Court declared that Congress has authority ‘‘to see to it that taxpayer dollars . . . are in fact spent for the general welfare, and not frittered away in graft or on projects undermined when funds are siphoned off or corrupt public officers are derelict about demanding value for dollars.’’ 1 Congress’ failure to require proof of a direct connection between the bribery and the federal funds was permissible, the Court concluded, because ‘‘corruption does not have to be that limited to affect the federal interest. Money is fungible, bribed officials are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value.’’ 2 —Conditional Grants in Aid [P. 165, add to n.603:] This is not to say that Congress may police the effectiveness of its spending only by means of attaching conditions to grants; Congress may also rely on criminal sanctions to penalize graft and corruption that may impede its purposes in spending programs. Sabri v. United States, 124 S. Ct. 1941 (2004). Article I, § 8, cl. 3. Commerce Power POWER TO REGULATE COMMERCE The Commerce Clause as a Source of National Police Power —Is There an Intrastate Barrier to Congress’ Commerce Power? [P. 212, substitute for second paragraph of section:] Congress’ commerce power has been characterized as having three, or sometimes four, very interrelated principles of decision, some old, some of recent vintage. The Court in 1995 described VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00003 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP 2 ARTICLE I—LEGISLATIVE DEPARTMENT 3 United States v. Lopez, 514 U.S. 549, 558–59 (1995) (citations omitted). Illustrative of the power to legislate to protect the channels and instrumentalities of interstate commerce is Pierce County v. Guillen, 537 U.S. 129, 147 (2003), in which the Court upheld a prohibition on the use in state or federal court proceedings of highway data required to be collected by states on the basis that ‘‘Congress could reasonably believe that adopting a measure eliminating an unforeseen side effect of the information-gathering requirement . . . would result in more diligent efforts [by states] to collect the relevant information.’’ 4 Reliance could not be placed on Executive statements, the Court explained, since ‘‘the Constitution expressly grants Congress, not the President, the power to ‘‘three broad categories of activities that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.’’ 3 [P. 217, add to n.883:] Lopez did not ‘‘purport to announce a new rule governing Congress’ Commerce Clause power over concededly economic activity.’’ Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003). The Commerce Clause as a Restraint on State Powers —Congressional Authorization of Impermissible State Action [P. 231, add to n.957 after initial cite:] See also Hillside Dairy, Inc. v. Lyons, 539 U.S. 59 (2003) (authorization of state laws regulating milk solids does not authorize milk pricing and pooling laws). State Taxation and Regulation: The Modern Law —Regulation [P. 249, add to n.1051:] But cf. Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644 (2003) (state prescription drug program providing rebates to participating companies does not regulate prices of out-of-state transactions and does not favor in-state over outof- state companies). Foreign Commerce and State Powers [P. 256, substitute for last two sentences of first full paragraph:] The tax, it was found, did not impair federal uniformity or prevent the Federal Government from speaking with one voice in international trade, in view of the fact that Congress had rejected proposals that would have preempted California’s practice.4 The result VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00004 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP ARTICLE I—LEGISLATIVE DEPARTMENT 3 ‘regulate Commerce with foreign Nations.’ ’’ 512 U.S. at 329. ‘‘Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional California’s otherwise valid, congressionally condoned, use of worldwide combined reporting.’’ Id. at 330. Dissenting Justice Scalia noted that, although the Court’s ruling correctly restored preemptive power to Congress, ‘‘it permits the authority to be exercised by silence.’’ Id. at 332. 5 The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 139– 49 (1993). of the case, perhaps intended, is that foreign corporations have less protection under the negative commerce clause.5 Concurrent Federal and State Jurisdiction —The Standards Applied [P. 262, add to end of n.1109:] Aetna Health, Inc. v. Davila, 124 S. Ct. 2488 (2004) (suit brought against HMO under state health care liability act for failure to exercise ordinary care when denying benefits is preempted). [P. 265, add to n.1118:] But cf. Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) (interpreting preemption language and saving clause in Federal Boat Safety Act as not precluding a state common law tort action). COMMERCE WITH INDIAN TRIBES [P. 278, add to end of n.1189:] United States v. Lara, 124 S. Ct. 1628, 1633 (2004). [P. 281, add to end of n.1206:] Congress may also remove restrictions on tribal sovereignty. The Court has held that, absent authority from federal statute or treaty, tribes possess no criminal authority over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). The Court also held, in Duro v. Reina, 495 U.S. 676 (1990), that a tribe has no criminal jurisdiction over non-tribal Indians who commit crimes on the reservation; jurisdiction over members rests on consent of the self-governed, and absence of consent defeats jurisdiction. Congress, however, quickly enacted a statute recognizing inherent authority of tribal governments to exercise criminal jurisdiction over nonmember Indians, and the Court upheld congressional authority to do so in United States v. Lara, 124 S. Ct. 1628 (2004). VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00005 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP 4 ARTICLE I—LEGISLATIVE DEPARTMENT 6 Graham v. John Deere Co., 383 U.S. 1, 5, 9 (1966). 7 Eldred v. Ashcroft, 537 U.S. 186, 205 (2003) (quoting Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 429 (1984)). 8 537 U.S. at 204. 9 The Court in Eldred upheld extension of the term of existing copyrights from life of the author plus 50 years to life of the author plus 70 years. While the more general issue was not raised, the Court opined that this length of time, extendable by Congress, was ‘‘clearly’’ not a regime of ‘‘perpetual’’ copyrights. The only two dissenting Justices, Stevens and Breyer, challenged this assertion. 10 Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815); Bloomer v. McQuewan, 55 U.S. (14 How.) 539, 548 (1852); Bloomer v. Millinger, 68 U.S. (1 Wall.) 340, 350 (1864); Eunson v. Dodge, 85 U.S. (18 Wall.) 414, 416 (1873). Clause 8. Copyrights and Patents COPYRIGHTS AND PATENTS Origins and Scope of the Power [P. 312, delete sentence ending with n.1421 and substitute the following:] These English statutes curtailed the royal prerogative in the creation and bestowal of monopolistic privileges, and the Copyright and Patent Clause similarly curtails congressional power with regard both to subject matter and to the purpose and duration of the rights granted.6 [P. 313, delete final sentence of paragraph] [P. 313, add new paragraph to end of section:] The constitutional limits, however, do not prevent the Court from being highly deferential to congressional exercise of its power. ‘‘It is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors,’’ the Court has said.7 ‘‘Satisfied’’ in Eldred v. Ashcroft that the Copyright Term Extension Act did not violate the ‘‘limited times’’ prescription, the Court saw the only remaining question as whether the enactment was ‘‘a rational exercise of the legislative authority conferred by the Copyright Clause.’’ 8 The Act, the Court concluded, ‘‘reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain.’’ Moreover, the limitation on the duration of copyrights and patents is largely unenforceable. The protection period may extend well beyond the life of the author or inventor.9 Congress may extend the duration of existing copyrights and patents, and in so doing may protect the rights of purchasers and assignees.10 VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00006 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP ARTICLE I—LEGISLATIVE DEPARTMENT 5 11 17 U.S. (4 Wheat.) 316 (1819). 12 Jinks v. Richland County, 538 U.S. 456 (2003). 13 538 U.S. 84 (2003). Clause 18. Necessary and Proper Clause NECESSARY AND PROPER CLAUSE Scope of Incidental Powers [P. 357, substitute for first sentence of section:] The Necessary and Proper Clause, sometimes called the ‘‘coefficient’’ or ‘‘elastic’’ clause, is an enlargement, not a constriction, of the powers expressly granted to Congress. Chief Justice Marshall’s classic opinion in McCulloch v. Maryland 11 set the standard in words that reverberate to this day. Operation of Clause [P. 358, add to n.1734:] Congress may also legislate to protect its spending power. Sabri v. United States, 124 S. Ct. 1941 (2004) (upholding imposition of criminal penalties for bribery of state and local officials administering programs receiving federal funds). —Courts and Judicial Proceedings [P. 361, add clause following n.1759:] may require the tolling of a state statute of limitations while a state cause of action that is supplemental to a federal claim is pending in federal court,12 Section 10—Powers Denied to States Clause 1. EX POST FACTO LAWS —Scope of the Provision [P. 382, add to text following n.1912:] Distinguishing between civil and penal laws was at the heart of the Court’s decision in Smith v. Doe13 upholding application of Alaska’s ‘‘Megan’s Law’’ to sex offenders who were convicted before the law’s enactment. The Alaska law requires released sex offenders to register with local police and also provides for public notification via the Internet. The Court accords ‘‘considerable deference’’ to legislative intent; if the legislature’s purpose was to enact a civil regulatory scheme, then the law can be ex post facto only if there VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00007 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP 6 ARTICLE I—LEGISLATIVE DEPARTMENT 14 538 U.S. at 92. 15 The law’s requirements do not closely resemble punishments of public disgrace imposed in colonial times; the stigma of Megan’s Law results not from public shaming but from the dissemination of information about a criminal record, most of which is already public. 538 U.S. at 98. 16 538 U.S. at 102. 17 Excessiveness was alleged to stem both from the law’s duration (15 years of notification by those convicted of less serious offenses; lifetime registration by serious offenders) and in terms of the widespread (Internet) distribution of the information. 18 538 U.S. at 105. Unlike involuntary civil commitment, where the ‘‘magnitude of restraint [makes] individual assessment appropriate,’’ the state may make ‘‘reasonable categorical judgments,’’ and need not provide individualized determinations of dangerousness. Id. at 103. 19 3 U.S. (3 Dall.) 386, 389 (1798). is ‘‘the clearest proof’’ of punitive effect.14 Here, the Court determined, the legislative intent was civil and non-punitive—to promote public safety by ‘‘protecting the public from sex offenders.’’ The Court then identified several ‘‘useful guideposts’’ to aid analysis of whether a law intended to be non-punitive nonetheless has punitive effect. Registration and public notification of sex offenders are of recent origin, and are not viewed as a ‘‘traditional means of punishment.’’ 15 The Act does not subject the registrants to an ‘‘affirmative disability or restraint’’; there is no physical restraint or occupational disbarment, and there is no restraint or supervision of living conditions, as there can be under conditions of probation. The fact that the law might deter future crimes does not make it punitive. All that is required, the Court explained, is a rational connection to a non-punitive purpose, and the statute need not be narrowly tailored to that end.16 Nor is the act ‘‘excessive’’ in relation to its regulatory purpose.17 Rather, ‘‘the means chosen are ‘reasonable’ in light of the [state’s] non-punitive objective’’ of promoting public safety by giving its citizens information about former sex offenders, who, as a group, have an alarmingly high rate of recidivism. 18 —Changes in Punishment [P. 383, add as substitute for first sentence of section:] Justice Chase in Calder v. Bull gave an alternative description of the four categories of ex post facto laws, two of which related to punishment. One such category was laws that inflict punishment ‘‘where the party was not, by law, liable to any punishment’’; the other was laws that inflict greater punishment than was authorized when the crime was committed.19 Illustrative of the first of these punishment categories is ‘‘a law enacted after expiration of a previously applicable statute of limitations period [as] applied to revive a previously time-barred prosecu- VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00008 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP ARTICLE I—LEGISLATIVE DEPARTMENT 7 20 539 U.S. 607, 632–33 (2003) (invalidating application of California’s law to revive child abuse charges 22 years after the limitations period had run for the alleged crimes). 21 Lindsey v. Washington, 301 U.S. 397 (1937). But note the limitation of Lindsey in Dobbert v. Florida, 432 U.S. 282, 298–301 (1977). 22 Holden v. Minnesota, 137 U.S. 483, 491 (1890). 23 Medley, Petitioner, 134 U.S. 160, 171 (1890). tion.’’ Such a law, the Court ruled in Stogner v. California,20 is prohibited as ex post facto. Courts that had upheld extension of unexpired statutes of limitation had been careful to distinguish situations in which the limitations periods have expired. The Court viewed revival of criminal liability after the law had granted a person ‘‘effective amnesty’’ as being ‘‘unfair’’ in the sense addressed by the Ex Post Facto Clause. Illustrative of the second punishment category are statutes that changed an indeterminate sentence law to require a judge to impose the maximum sentence,21 that required solitary confinement for prisoners previously sentenced to death,22 and that allowed a warden to fix, within limits of one week, and keep secret the time of execution.23 VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00009 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00010 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP 9 1 Pub. L. 107–40, 115 Stat. 224 (2001). 2 Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). There was no opinion of the Court. Justice O’Connor, joined by Chief Justice Rehnquist, Justice Kennedy and Justice Breyer, avoided ruling on the Executive Branch argument that such detentions could be authorized by its Article II powers alone, and relied instead on the ‘‘Authorization for Use of Military Force’’ passed by Congress. Justice Thomas also found that the Executive Branch had the power to detain the petitioner, although his dissenting opinion found that such detentions were authorized by Article II. Justice Souter, joined by Justice Ginsberg, rejected the argument that the Congress had authorized such detentions, while Justice Scalia, joined with Justice Stevens, denied that such congressional authorization was possible without a suspension of the writ of habeas corpus. 3 At a minimum, the petitioner must be given notice of the asserted factual basis for holding him, must be given a fair chance to rebut that evidence before a neutral decision maker, and must be allowed to consult an attorney. 124 S. Ct. at 2648, 2652 (2004). ARTICLE II Section 2. Powers and Duties of the President Clause 1. Commander-in-Chiefship; Presidential Advisers; Pardons COMMANDER-IN-CHIEF [P. 483, add new section following ‘‘Articles of War: World War II Crimes’’:] —Articles of War: Response to the Attacks of September 11, 2001 In response to the September 11, 2001 terrorist attacks on New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the Authorization for Use of Military Force,1 which provided that the President may use ‘‘all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks [or] harbored such organizations or persons.’’ During a miliary action in Afghanistan pursuant to this authorization, a United States citizen, Yaser Hamdi, was taken prisoner. The Executive Branch argued that it had plenary authority under Article II to hold such an ‘‘enemy combatant’’ for the duration of hostilities, and to deny him meaningful recourse to the federal courts. In Hamdi v. Rumsfeld, the Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan, although a majority of the Court appeared to reject the notion that such power was inherent in the Presidency, relying instead on statutory grounds.2 However, the Court did find that the Government may not detain the petitioner indefinitely for purposes of interrogation, without giving him the opportunity to offer evidence that he is not an enemy combatant.3 VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00011 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP 10 ARTICLE II—EXECUTIVE DEPARTMENT 4 124 S. Ct. 2686 (2004). 5 Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). 6 The petitioners were Australians and Kuwaitis. 7 124 S. Ct. at 2983 (2004). 8 The Court found that 28 U.S.C. § 2241, which had previously been construed to require the presence of a petitioner in a district court’s jurisdiction, was now satisfied by the presence of a jailor-custodian. See Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973). Another ‘‘enemy combatant’’ case, this one involving an American citizen arrested on American soil, was remanded after the Court found that a federal court’s habeas jurisdiction under 28 U.S.C. § 2241 was limited to jurisdiction over the immediate custodian of a petitioner. Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004) (federal court’s jurisdiction over Secretary of Defense Rumsfeld was not sufficient to satisfy the presence requirement under 28 U.S.C. § 2241). 9 E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d Cir. 1919); 1 W. WILLOUGHBY, supra, at 589. The State Department held the same view. 5 G. HACKWORTH, DIGEST OF INTERNATIONAL LAW 426 (1944). In Rasul v. Bush,4 the Court rejected an Executive Branch argument that foreign prisoners being held at Guantanamo Bay, Cuba were outside of federal court jurisdiction. The Court distinguished earlier case law arising during World War II which denied habeas corpus petitions from German citizens who had been captured and tried overseas by United States military tribunals.5 In Rasul, the Court noted that the Guantanamo petitioners were not citizens of a country at war with the United States,6 had not been afforded any form of tribunal, and were being held in a territory over which the United States exercised exclusive jurisdiction and control.7 In addition, the Court found that statutory grounds existed for the extension of habeas corpus to these prisoners.8 Clause 2. Treaties and Appointment of Officers INTERNATIONAL AGREEMENTS WITHOUT SENATE APPROVAL The Domestic Obligation of Executive Agreements [P. 527, substitute for first sentence of first full paragraph on page:] Initially, it was the view of most judges and scholars that executive agreements based solely on presidential power did not become the ‘‘law of the land’’ pursuant to the Supremacy Clause because such agreements are not ‘‘treaties’’ ratified by the Senate.9 The Supreme Court, however, found another basis for holding state laws to be preempted by executive agreements, ultimately relying on the Constitution’s vesting of foreign relations power in the national government. VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00012 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP ARTICLE II—EXECUTIVE DEPARTMENT 11 10 539 U.S. 396 (2003). The Court’s opinion in Dames & Moore v. Regan, 453 U.S. 654 (1981), was rich in learning on many topics involving executive agreements, but the preemptive force of agreements resting solely on presidential power was not at issue, the Court concluding that Congress had either authorized various presidential actions or had long acquiesced in others. 11 539 U.S. at 416. 12 539 U.S. at 413. 13 539 U.S. at 420. 14 Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575–76 (1840). See also United States v. Belmont, 301 U.S. 324, 331 (1937) (‘‘The external powers of the United States are to be exercised without regard to state laws or policies. . . . [I]n respect of our foreign relations generally, state lines disappear’’); The Chinese Exclusion Case, 130 U.S. 581, 606 (1889) (‘‘For local interests the several States of the Union exist; but for national purposes, embracing our relations with foreign nations, we [P. 529, substitute for last paragraph of section:] Belmont and Pink were reinforced in American Insurance Association v. Garamendi.10 In holding that California’s Holocaust Victim Insurance Relief Act was preempted as interfering with the Federal Government’s conduct of foreign relations, as expressed in executive agreements, the Court reiterated that ‘‘valid executive agreements are fit to preempt state law, just as treaties are.’’ 11 The preemptive reach of executive agreements stems from ‘‘the Constitution’s allocation of the foreign relations power to the National Government.’’ 12 Because there was a ‘‘clear conflict’’ between the California law and policies adopted through the valid exercise of federal executive authority (settlement of Holocaust-era insurance claims being ‘‘well within the Executive’s responsibility for foreign affairs’’), the state law was preempted.13 [P. 529, add new section following ‘‘The Domestic Obligation of Executive Agreements’’:] State Laws Affecting Foreign Relations—Dormant Federal Power and Preemption If the foreign relations power is truly an exclusive federal power, with no role for the states, a logical consequence is that some state laws impinging on foreign relations are invalid even in the absence of already-established federal policy. The Supreme Court has so stated and so held. There is, in effect, a ‘‘dormant’’ foreign relations power. The scope of this power remains undefined, however, and its constitutional basis is debated by scholars. The exclusive nature of the federal foreign relations power has long been asserted by the Supreme Court. In 1840, for example, the Court declared that ‘‘it was one of the main objects of the constitution to make us, so far as regarded our foreign relations, one people, and one nation; and to cut off all communications between foreign governments, and the several state authorities.’’ 14 A hundred VerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00013 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP 12 ARTICLE II—EXECUTIVE DEPARTMENT are but one people, one nation, one power’’); Hines v. Davidowitz, 312 U.S. 52, 63 (1941) (‘‘Our system of government . . . requires that federal power in the field affecting foreign relations be left entirely free from local interference’’). 15 United St

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