Congressional Authority to Adopt Legislation Establishing a National Lottery ( 1986 )

Congressional Authority to Adopt Legislation
Establishing a National Lottery
N either the T axing Clause, Article I, § 8, cl. 1, nor the Necessary and Proper Clause, Article I,
§ 8, cl. 18, o f the Constitution authorizes Congress to establish a national lottery.
April 4, 1986
M em orandum O p i n io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l ,
C r im in a l D iv is io n
This Office has been asked to comment on H.R. 772, 99th Cong., 1st Sess.,
the “National Social Security Lottery Act,” and H.R. 1878, 99th Cong., 1st
Sess., the “National Lottery Act.” These bills, which are identical in all perti­
nent respects, would establish a national lottery to raise money for the federal
government. After examining the constitutional authority for these bills, we
have concluded that Congress lacks the power to establish a national lottery
and, thus, to override the anti-gambling laws of the states.1
Both bills would create a National Lottery Commission, which would “es­
tablish, operate, and administer” the lottery program. H.R. 772, § 102(a); H.R.
1878, § 2(a).2 The Commission would determine the type of lottery to be
conducted, the price to be charged for tickets, the manner of selecting the
winners, and the amounts of the prizes. H.R. 772, § 102(a); H.R. 1878, § 2(b).
Neither bill, however, would give the Commission discretion in deciding how
to use lottery revenues. Under § 201 of H.R. 772, those revenues remaining
after payment of operating expenses would be deposited in the Federal Old Age
1 In an e arlier m em orandum , this O ffice addressed the constitutionality of the provisions that would
preem pt any state o r local law s prohibiting the operation o f a national lottery, and concluded that the Tenth
A m endm ent does not preclude the preem ption provisions o f the proposed bills. M emorandum from Ralph W.
Tarr, A cting A ssistant A ttorney General, O ffice o f Legal Counsel to Stephen S. Trott, A ssistant A ttorney
G eneral, C rim inal D ivision (Nov. 14, 1985). O ur analysis was prem ised, however, on the assumption that
C ongress has constitutional authority in th e first instance to establish a national lottery. This memorandum
exam ines the validity o f that assumption.
2U n d er § 101(a) o f H.R. 772, the C om m ission would consist o f five members, each selected for a term of
five years. T he m em bers w ould be chosen from among individuals w ho are “not elected or appointed officers
o r e m ployees in the executive, legislative, o r judicial branch o f the G overnm ent o f the United States." Id.
U nder H .R. 1872, the five Commission m embers w ould serve for terms of six years. Id. § 3(c). The
Secretary o f the T reasury and the Secretary o f Health and H uman Services would serve on the Commission.
Id | 3(a). T he rem aining three members o f the C om m ission would be chosen from am ong individuals who
are “d irecto rs o f lo tteries operated by States o r have experience which w ould provide expertise w ith respect
to the operation o f a legitim ate lottery w hich is reasonably equivalent to that of such a director.” Id. § 3(b).
B oth b ills provide that members o f th e C om m ission may be rem oved by the President “upon notice and
hearing, fo r neglect o f duty or malfeasance in office but for no other cause.” H.R. 772, § 101(a)(2); H.R.
1878, § 3(c).
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and Survivors Insurance Trust Fund, the Federal Disability Insurance Trust
Fund, and the Federal Hospital Insurance Trust Fund.3 Under §§ 7 and 8 of
H.R. 1878, remaining revenues would be divided as follows: (1) 50 percent to
be deposited in the Federal Hospital Insurance Trust Fund; and (2) 50 percent
to be deposited in the general fund of the Treasury for the purpose of reducing
the federal deficit. Both bills provide for the sale of national lottery tickets
nationwide, notwithstanding any state law prohibiting lotteries. H.R. 772,
§ 104(a); H.R. 1878, § 6(a)(1).4 The preemption provisions do not, however,
invalidate any state or local lotteries. H.R. 772, § 104(b); H.R. 1878, § 6(a)(2).
In considering the constitutionality of H.R. 772 and H.R. 1878, we begin by
noting that Article I, § 8 of the Constitution does not endow Congress with “all
legislative power.” The delegates to the Constitutional Convention considered
such a broad description of congressional authority, but decided instead that
Congress’ powers should be specifically enumerated.5 An act of Congress
therefore is invalid unless it is affirmatively authorized under the Constitution.
The Tenth Amendment makes explicit the doctrine of enumerated powers,
stating: “The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the
people.” U.S. Const, amend. X.
Under the doctrine of enumerated powers, H.R. 772 and H.R. 1878 are
invalid unless the creation of a national lottery falls within one of the limited
grants of legislative authority conferred upon Congress.6 The, Constitution, of
3 Under § 201(d)(3), the Secretary o f Treasury, after consulting with the Secretary of H ealth and Human
Services, would determ ine how to allocate lottery revenues among these three trust funds.
4 The bills provide:
The Commission shall continuously consult and cooperate with appropriate State and local
governm ental authorities, particularly those in States and localities having laws or specific public
policies relating to lotteries, w ith the objective o f facilitating the operation o f the national lottery
under this Act and . . . m inimizing the impact o f the national lottery on State.and local activities,
laws, and policies bearing directly o r indirectly upon the conduct o f lotteries in general or o f the
national lottery under this Act in particular.
H.R. 772, § 104(c); H.R. 1878, § 6(b).
5 The delegates at the C onvention voted twice for a sim ple description such as that embodied in the Virginia
Plan: “ [TJhe National Legislature ought to be em pow ered to enjoy the Legislative Rights vested in Congress
by the C onfederation, and m oreover to legislate in all cases to which the separate states are incom petent, or
which the harm ony o f the United States may be interrupted by the exercise o f individual Legislation." See 1
M. Farrand, Records o f the Federal Convention o f 1787 53 (1911).
6 See National Prohibition Cases, 253 U.S 350, 377 (1920) (“C ongress is alw ays exercising delegated,
limited, circum scribed and enum erated powers, and not the broad and elastic police powers o f a State.”);
House v. Mayes, 219 U.S. 270, 281 (1911) (“G overnm ent created by the Federal C onstitution is one o f
enum erated powers, and cannot, by any o f its agencies, exercise an authority not granted by that instru­
ment.”); Kansas v. Colorado, 206 U.S. 46, 81 (1907) (“By reason o f the fact that there is no general grant o f
legislative pow er, it has becom e an accepted constitutional rule that this is a governm ent o f enum erated
pow ers.”). United States v. Harris, 106 U.S. 629, 635 636 (1882) (“The governm ent of the U nited States is
one of delegated, lim ited, and enum erated powers . . . . Therefore every valid act o f Congress m ust find in the
C onstitution some w arrant for its passage.”); McCulloch v. Maryland , 17 U S (4 W heal.) 316, 405 (1819)
(“This governm ent is acknow ledged by all to be one o f enum erated powers. The principle, that it can exercise
only the pow ers granted to i t , . . . is now universally adm itted.” ); Martin v. Hunter's Lessee, 14 U.S. (1
W heat.) 304, 326 (1816) (“The g o v e rn m e n t. . . o f the United States can claim no powers which are not
granted to it by the C onstitution, and the powers actually granted m ust be such as are expressly given, or
given by necessary im plication.” ).
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course, does not explicitly authorize Congress to establish a national lottery.
We therefore turn to an examination of the only sources of constitutional
authority that even arguably support congressional enactment of a national
lottery: the Taxing Clause (Article I, § 8, cl. 1) and the Necessary and Proper
Clause (Article I, § 8, cl. 18).
I. The Taxing OfflEse
Under the Articles of Confederation, the national government lacked author­
ity to lay and collect taxes. Articles of Confederation, Art. IX. Widely blamed
for the failure of the Articles o f Confederation, see L. Tribe, American Consti­
tutional Law 5-2 at 225 n.2 (1978), the inability to tax was remedied in Article
I of the Constitution, which grants to Congress the authority to impose taxes for
governmental purposes:
The Congress shall have Power To lay and collect Taxes, Du­
ties, 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.
Art. I, § 8, cl. 1.
The Framers clearly intended for Congress’ taxing authority to be very
broad. In order to prevent the United States from “resigning its independence
and sinking into the degraded condition of a province,” id., they granted to
Congress “a complete power . . . to procure a regular and adequate supply of
revenue.” The Federalist No. 30, at 188 (A. Hamilton) (C. Rossiter ed. 1961).
The Supreme Court has interpreted Congress’ taxing power in a manner
consistent with this original intent. In The License Tax Cases, 12 U.S. (5 Wall.)
462, 471 (1867), for example, the Court stated that Congress’ taxing power
“reaches every subject.” The Court also has noted that Congress’ authority in
this area is “exhaustive and reaches every conceivable power of taxation.”
Brubasher v. Union Pacific R. Co., 240 U.S. 1, 12 (1916).
Despite the breadth of Congress’ taxing power, the fact remains that the
terms of Article I do not authorize Congress to fund the activities of the federal
government by any means it chooses. Rather, Article I provides quite specifi­
cally that Congress may raise revenues by imposing “taxes, duties, imposts,
and excises.”7 The Framers obviously were aware that these terms impose
some limits on the means by which the national government may raise rev­
enues. Alexander Hamilton, for example, recognized that Congress has the
power to tax only “in the ordinary modes.” The Federalist No. 31, at 195 (C.
Rossiter ed. 1961).
7 A rticle I, o f course, also authorizes C o n g ress “ [t]o borrow money on the credit o f the United States." U.S.
C onst, art. I , § 8, cl. 2. O bviously, establishm ent o f a national lottery cannot be sustained as an exercise o f the
C ongress* pow er to borrow money.
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Although the Framers did not discuss at length the meaning of the terms
“taxes,” “duties,” “imposts,” and “excises,” it seems clear that these terms were
not intended to encompass a government sponsored national lottery. The word
“taxes” was used by the Framers to denote “contributions imposed by the
government upon individuals.” 1 J. Story, Commentaries on the Constitution o f
the United States § 950, p. 676 (4th ed. 1873).8 A lottery, of course, involves a
voluntary, rather than an imposed, contribution. A lottery also does not fit
within the definition of a “duty,” which likewise denotes an involuntary pay­
ment to the government.9 Indeed, Luther Martin, a Maryland delegate to the
Constitutional Convention, was informed by the Committee of Detail that the
word “duties” simply meant “stamp duties on paper, parchment, and vellum.” 3
M. Farrand, Records o f the Federal Convention o f 1787 203 (1911) (speech to
the Maryland legislature). The power to lay and collect “imposts” similarly was
intended to be narrow; Martin stated that it authorized Congress to “impose
duties on any and every article of commerce imported into these States.” Id. at
204.10 Finally, an “excise” was “deemed to be . . . an inland imposition, paid
sometime upon the consumption of the commodity, or frequently upon the
retail sale, which is the last stage before consumption.” 1 J. Story, Commentar­
ies on the Constitution o f the United States § 953, at 680 (4th ed. 1873); see
also Flint v. Stone Tracy Co., 220 U.S. 107,151 (1911) (excises are “taxes laid
upon the manufacture, sale or consumption of commodities within the country,
upon licenses to pursue certain occupations, and upon corporate privileges”).
Thus, the Framers’ usage of the terms “taxes, duties, imports, and excises” in
Article 1, § 8, cl. 1 accords with the contemporary usage of those terms, and
plainly reflects that a lottery does not fall within the scope of any of the modes
of revenue raising enumerated in the Taxing Clause. This conclusion is rein­
forced by the fact that lotteries were an important source of governmental
revenues at the time the Constitution was drafted. During the Colonial period,
the colonies sanctioned 158 lotteries. See J. Ezell, supra note 8, at 54. The
funds raised were used to finance bridges,11 roads,12 schools,13 lighthouses,14
8 In 1826, Thom as Jefferson noted that the State o f V irginia often has used lotteries to raise money for
“useful under- taking[s]," such as schools. 17 The Writings o f Thomas Jefferson 450 (A. Lipscom b ed. 1904).
He stated that money raised in this way was a “tax . . . laid on the w illing only, that is to say, on those who can
risk the price o f a ticket.” Id. Jefferson apparently was using the word “tax" in a colloquial sense. In any
event, he clearly was not expounding on th em ean in g o f the term as it is used in Article I, § 8, cl. 1 o f the
Constitution.
It is notew orthy that Jefferso n's aforem entioned reference to lotteries came in a letter strongly defending
state authorized lotteries. A t the time, he was seeking legislative approval o f a p nvate lottery to dispose o f his
own land. The eighty-three- year old Jefferson was over $80,000 in debt and believed that a lottery was the
only way in w hich he could get a fair price for his acreage. J. Ezell, Fortune's Merry Wheel 168 (1960). Only
sixteen years earlier, in 1810, Jefferson had condem ned lotteries and stated that he had “made it a rule never
to engage in a lottery o r any other adventure o f mere chance.” 12 The Writings o f Thomas Jefferson 386 (A.
Lipscom b ed. 1904) (letter to Trustees for the Lottery o f East T ennessee College).
9 See Webster’s Third New International Dictionary 705 (1976).
10 A ccording to Justice Story, the Fram ers probably intended the term “ im post” to m ean a “duty on
im ported goods and m erchandise.” 1 J. Story, Commentaries on the Constitution o f the United States § 952, at
678-79 (4th ed. 1873).
M In 1760, New Ham pshire authorized a lottery to raise 4000 pounds to build a bridge ov er the Exeter
C ontinued
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churches,15 and the war against the French.16 The lotteries did not cease when
the Declaration of Independence was signed; during the first 13 years of our
Nation’s independence, the states authorized about 100 lotteries. Prior to 1781,
many of these state-sanctioned lotteries financed the war for independence
against the British.17 After General Washington’s victory at Yorktown, these
lotteries were used to raise funds for internal improvements within the states.
The use of lotteries during this period was not confined to the state govern­
ments. In 1776, the Continental Congress established a United States lottery to
raise $1,005,000 for troops in the field.18
The prevalence of lotteries during the Colonial and Confederation periods
strongly suggests that the Framers’ failure to endow Congress with the author­
ity to establish lotteries was not inadvertent. Instead, this history suggests that
the Framers wanted to allow each individual state to decide what lotteries, if
any, would be permitted within its borders. By failing to grant Congress the
authority to establish lotteries, we believe that the Framers intended that the
power to raise revenues by lotteries would be “reserved to the States.” U.S.
Const, amend. X.
There are two primary reasons that the Framers might have wanted to reserve
to the states alone the power to authorize lotteries. First, the Framers may have
concluded that a national lottery, by competing with state lotteries, would
impede the states’ ability to raise revenues by this method. The cost of raising a
dollar by lottery is far higher than the cost of raising a dollar by taxation,19 and
state lotteries would become even more inefficient as a means of raising
revenue if they were forced to compete with a national lottery. Given the
importance of lotteries as a source of governmental funding in 1787, the
Framers may have wanted to accord the states the exclusive ability to raise
revenues by this method. H.R. 772 and H.R. 1878, by establishing a national
11 (. . . continued)
R iver. J. Ezell, supra note 8, at 56. E ig h t years later, a second lottery was licensed to raise 1000 more
pounds to com plete the bridge. Id.
12 In 1762, R hode Island sanctioned a lottery to raise 4000 pounds to repair the road between Providence
and C onnecticut. J. Ezell, supra note 8, a t 58.
13 In 1746, New Y ork authorized a lo tte ry to raise 2,250 pounds for the founding o f K ing's C ollege (later
C olum bia). J. Ezell, supra note 8, at 56. F o u r subsequent lotteries were sanctioned to raise m oney for K ing’s
C ollege in 1748, 1753 (tw o), and 1754. Id.
14 In 1760, C onnecticut authorized a lo ttery to raise 500 pounds for the building o f a lighthouse at New
London. J. E zell, supra note 8, at 55.
15 In 1769, Pennsylvania authonzed a lo ttery to raise 3099 pounds and 12 shillings fo r the First, Second, and
Third Presbyterian churches in Philadelphia and the G erm an Reformed church at W ooster. J. Ezell, supra
note 8, a t 57.
16 In 1754, V irginia authorized a lo ttery to raise 6000 pounds for protection against the French. J. Ezell,
supra note 8, a t 59.
17 M assachusetts, for exam ple, authorized a lottery to raise $750,000 to reward enlistees in the Continental
A rm y. J. Ezell, supra note 8, at 71.
18 A lthough initially very popular, this national lottery ultim ately w as unsuccessful. See J. Ezell, supra note
8, at 6 1 -6 3 .
,9 It has been reported that “it costs states anywhere from 15 cents to 4 0 cents to collect one d ollar in lottery
revenue; the cost o f producing a dollar in revenue through conventional means o f taxation is less than
a nickel.” D. M orrison, Tristate Area Is Gambling Again on More Gambling , N.Y. Tim es, July 4, 1976, § 4,
at 4.
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lottery, almost certainly would diminish lottery revenues in 22 states and the
District of Columbia.20
The controversial nature of lotteries during the period of the American
founding suggests a second and possibly more important reason why the
Framers chose not to grant Congress the power to establish a national lottery.
Although lotteries were widely permitted in 1787, many groups objected to
them on religious and moral grounds. Famous Puritan theologians such as
Cotton Mather had argued,21 as had the Quakers,22 that the Bible prohibited
lotteries. This opposition must have suggested to the Framers the possibility
that states and localities might subsequently wish to abolish lotteries. Indeed,
shortly after the adoption of the Constitution, this possibility became a reality,
as most states adopted legislation abolishing lotteries.23 In this historical con­
text, and in light of the Framers’ clear intent that the states retain primary
authority to regulate public morality,24 it is not surprising that the Constitu­
tional Convention did not authorize Congress to establish a national lottery.
Such a lottery presumably would be effective in every state,25 and therefore
would prevent states opposed to lotteries from eliminating this form of gam­
bling or from regulating the national lottery in ways thought to be necessary for
protection of the public welfare.
This interpretation of the Taxing Clause is bolstered by the fact that Con­
gress has never established a national lottery pursuant to this constitutional
provision. In 1812, Congress enacted a statute that permitted the District of
20 Lotteries have again becom e a very im portant source o f revenues in many states. In 1984, lotteries netted
$2.9 billion, on total w agers o f $7.1 billion, for 17 states and the District o f Colum bia. Since then, five other
states have launched lotteries, and C alifornia's alone grossed $1 billion in the first four m onths. D. Fam ey,
More States Bet on Lotteries to Increase Revenue as Popularity o f this "Painless Taxation ” Grows, W all St.
J., Feb. 7, 1986, at 42.
21 Cotton M ather explained*
(L]ots, being m entioned in the sacred oracles o f Scripture as used only in w eighty cases and as an
acknow ledgm ent o f God sitting in ju d g m e n t. . . cannot be made tools and parts o f o u r common
sports w ithout, at least, such an appearance o f evil as is forbidden in the word of God.
U.S. D ep’t o f Justice, The Development o f the Law o f Gambling: 1776-1976 at 51 (1977) (quoting H.
Chafetz, Play the Devil 14 (I960)).
22The Q uakers, more than any other religious group, were consistent in a their opposition to lotteries. See J.
Ezell, supra note 8, at 18.
23 In 1833, the Pennsylvania legislature enacted a statute providing that “all and every lottery and lotteries,
and device and devices in the nature o f lotteries, shall be utterly and entirely abolished, and are hereby
declared to be thenceforth unauthorized and unlaw ful.” 1832-1833 Laws o f Pennsylvania, A ct No. 32, § 1.
By 1860, every state except three had followed suit. J. Ezell, supra note 8, at 228-29.
24 See, e.g., The Federalist No. 45, at 29 2 -9 3 (J. M adison) (C. Rossiter ed. 1961) (“The pow ers reserved to
the several States will extend to all the objects w hich, in the ordinary course o f affairs, concern the lives,
liberties, and properties o f the people.” ); House v. Mayes, 219 U.S. 2 7 0 ,2 82 (1911) (“that am ong the pow ers
o f the State, not surrendered — w hich pow er therefore remains with the State — is the pow er to so regulate
the relative rights and duties o f all w ithin its jurisdiction so as to guard the public m orals” ); Barbier v.
Connolly, 113 U.S. 27, 31 (1885) (A state exercises its police pow er “to prescribe regulations to promote the
health, peace, m orals, education and good order o f the people, and to legislate so as to increase the industries
o f the State, develop its resources, and add to its wealth and prosperity.”); Roth v. United States , 354 U.S.
476, 504 (1956) (H arlan, J., concurring and dissenting) (“S ta te s. . bear direct responsibility fo r the
protection o f the local m oral fabric.”).
25 H.R. 772 and H.R. 1878 both provide that the national lottery would be effective even in those states that
prohibit all lotteries. See H.R. 772, § 104(a); H.R. 1878, § 6(a)(1).
45
Columbia to authorize lotteries.26 But this statute did not allow the sale of
lottery tickets outside of the District. Cohens v. Virginia, 19 U.S. (6 Wheat.)
264, 447 (1821). Instead, this lottery was enacted pursuant to Article I, § 8, cl.
17 of the Constitution,27 which empowers Congress to govern the District of
Columbia. 19 U.S. (6 Wheat.) at 424. Thus, the 1812 statute, and a virtually
identical provision enacted in 1820,28 simply permitted the District of Colum­
bia to raise revenues by the same means employed by the states. A “national”
lottery was not created.29
II. The Necessary amdl Proper Clause
Article I, § 8, cl. 18 of the Constitution provides that Congress may enact
those laws that are “necessary and proper for carrying into Execution” its
enumerated powers. In the early years of the Republic, this constitutional
provision was the source of heated debate. Jefferson believed that the Neces­
sary and Proper Clause, if interpreted broadly, would “swallow up all the
delegated powers, and reduce the whole to one power.” G. Gunther, Constitu­
tional Law 96 (10th ed. 1980). Hamilton, on the other hand, argued that “[t]he
only question must be . . . whether the means to be employed . . . has a natural
relation to any of the acknowledged objects or lawful ends of the government.”
Id. The views of Hamilton ultimately prevailed in McCulloch v. Maryland, 17
U.S. (4 Wheat.) 316 (1819), in which the Supreme Court upheld the power of
Congress to charter a second Bank of the United States. The Court refused to
interpret the Constitution in a manner that would confine “the choice of means
26 See A ct o f M ay 4, 1812, ch. 75, § 6, 2 Stat. 726:
T hat the said corporation shall h av e full power and authority . . . to authorize the draw ing of
lotteries fo r effecting any im portant im provem ent to the city, which the ordinary funds or
revenue th ereo f w ill not accomplish; Provided , T hat the amount to be raised in each year shall
not exceed the sum o f ten thousand dollars: And provided also , T hat the object for which the
m oney is intended to be raised shall be first subm itted to the President of the U nited States, and
shall be approved by him.
27 A rticle I, § 8, cl. 17 o f the C onstitution provides that Congress shall
exercise exclusive Legislation in a ll C ases w hatsoever, over such District (not exceeding ten
M iles square) as m ay, by Cession o f particular States, and the A cceptance o f C ongress, becom e
the S eat o f the G overnm ent of the U n ited States.
T his clau se gives C ongress “the combined pow ers o f a general and o f a State governm ent in all cases where
legislation is possible.” O'Donoghue v. United States, 289 U.S. 516, 539 (1933) (quoting Stoutenburgh v
Hennick, 129 U .S. 141, 147 (1889)).
28 T he D istrict o f C o lu m b ia’s New A ct o f Incorporation provided in pertinent part:
T hat the said corporation shall have full pow er and authority . . . to authorise w ith the approba­
tion o f the P resident o f the United States, the draw ing o f lotteries fo r the erection o f bridges and
effectin g any im portant improvem ents in the city w hich the ordinary revenue thereof will not
accom plish, for the term of ten y ears: Provided , T h at the am ount so authorised to be raised in
each y ear shall not exceed the sum o f ten thousand dollars, clear o f expenses.
A ct o f M ay 15, 1820, ch. 104, § 8, 3 Stat. 588.
29 A t least thirteen lo tteries were authorized by the D istrict o f C olum bia and approved by the President. The
first lottery, w hich w as approved by P resident M adison on N ovem ber 23, 1812, was designed io raise money
fo r the establishm ent o f tw o public schools in the City o f W ashington. Laws o f the Corporation o f Washing­
ton 110 (B urch 1823). T he second lottery w as to raise funds fo r a local penitentiary; the third, a city hall Id.at 110-11 T he ten subsequent lotteries w ere established to produce revenues for the sam e three government
projects. Id. a t 1 11-12; Laws o f the Corporation o f Washington 278-79, 283 (Roth well 1833).
46
to [the] narrow limits” proposed by Jefferson. Id. at413. Chief Justice Marshall
wrote:
Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but consis­
tent with the letter and spirit of the constitution, are constitutional.
Id. at 420. See also Perez v. United States, 402 U.S. 146, 151 (1971); Heart o f
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964); Wickard v.
Filbum , 317 U.S. I l l , 124 (1942). Cf. Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528, 564—65 (1985) (Powell, J., dissenting).
The language used by Chief Justice Marshall in McCulloch clearly shows
that the Necessary and Proper Clause does not remove all limitations on
Congressional power. The means chosen to attain a legitimate governmental
end must be consistent with the “letter and spirit of the Constitution.” In recent
years, the Supreme Court has reemphasized that the Necessary and Proper
Clause cannot be used to circumvent other constitutional prohibitions, either
explicit or implicit. In Buckley v. Valeo, 424 U.S. 1 (1976), the Court held that
even though the creation of the Federal Election Commission was a legitimate
end, Congress could not encroach on the Executive’s authority to appoint
“officers of the United States.” In rejecting a claim that the legislation could be
justified under the Necessary and Proper Clause, the Court stated:
[T]he claim that Congress may provide for this manner of ap­
pointment under the Necessary and Proper Clause of Article I
stands on no better footing than the claim that it may provide for
such manner of appointment because of its substantive authority
to regulate federal elections. Congress could not, merely be­
cause it concluded that such a measure was “necessary and
proper” to the discharge of its substantive legislative authority,
pass a bill of attainder or ex post facto law contrary to the
prohibitions contained in section 9 of Article I. No more may it
vest in itself, or in its officers, the authority to appoint officers of
the United States when the Appointments Clause by clear impli­
cation prohibits it from doing so.
424 U.S. at 135.
Here, there can be no doubt that the raising of revenue for governmental
programs is a “legitimate end.” Nevertheless, like the legislation considered in
Buckley, H.R. 772 and H.R. 1878 use means that are inconsistent with “the
letter and spirit of the Constitution.” As previously discussed, the Framers
omitted lotteries from the list of powers in the Taxing Clause, and thus reserved
this method of raising revenue exclusively to the states. U.S. Const, amend. X.
Thus, here, as in Buckley, the allocation of governmental authority underlying
the Taxing Clause cannot be circumvented by invoking the Necessary and
Proper Clause.
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Conclusion
For the foregoing reasons, it is the opinion of this Office that Congress lacks
authority under the Constitution to establish a national lottery. We accordingly
believe that both H.R. 772 and H.R. 1878 are unconstitutional.30
C h a r l e s J. C o o p e r
Assistant Attorney General
Office o f Legal Counsel
30 In ad d itio n to the o v errid in g constitutional defect discussed in the text o f this m em orandum , these bills
include an unconstitutional limitation on th e President's rem oval power. In Myers v. United States, 272 U.S.
52 (1926), the Suprem e C ourt held that C o n g ress cannot lim it the President’s power to rem ove officers o f the
U nited States w ho are appointed by him w ith the consent o f the Senate. T o be sure, Humphrey's Executor v.
United States, 295 U.S. 602 (1935) and W iener v. United States, 357 U.S. 349 (1958), hold that C ongress can
lim it the P resid en t’s pow er to remove o ffice rs who perform quasi-legislative, quasi-judicial, or adjudicatory
functions. The com m issioners provided fo r in these bills, how ever, w ould not perform such functions. The
com m issioners w ould have the power to issu e regulations, a pow er that is plainly executive in nature and,
indeed, is possessed by the heads of m ost executive agencies. In the w ords of C hief Justice M arshall, the
com m issioners w ould m erely “ fill up the d e ta ils." Wayman v. Southard, 23 U.S. (10 W heat.) 1,43 (1825). It
is therefore o u r view that those provisions w ould unconstitutionally restrict the President’s removal power.
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