Congressional Authority to Adopt Legislation Establishing a National Lottery

Opinion

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).

40 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.” ).

41 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.

42 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

43 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.

44 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. 47 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.