Passenger Cases - McLean Opinion

McLean Opinion

Justice McLean, the most senior member of the Court at the time, began his opinion by weighing in on the debate concerning the nature of the Commerce Clause. McLean asserted the Commerce Clause "is exclusively vested in Congress." Under this view, if the federal government does not regulate a particular area of foreign or interstate commerce, such omission is not an invitation to the States to provide interim regulation, but rather is an expression of federal policy that such area should remain unregulated. McLean derives this interpretation of the Commerce Clause from a fundamental rejection of the concept of concurrent power. To McLean only one authority can exercise any given power, and the judicial task is to determine whether a particular subject falls within a power delegated to the federal government or within a power reserved to the States. McLean denies that a power may be exercised by the States unless and until the federal government chooses to exercise the same power, at which point the Sate regulation is trumped by the federal action. Although McLean recognizes that both Congress and the States may impose a tax on the same object, he insists these respective taxations result from the exercise of distinct powers, and do not represent any concurrent exercise of the same power. It is unclear what role the Supremacy Clause has in McLean's constitutional theory, since he seems to view each level of government as supreme within its own legitimate and distinct sphere of operations.

One of the key debates in the Passenger Cases concerned the question whether the transport of free persons, as distinct from goods and slaves, is to be included or excluded from the concept of "commerce" for purposes of the Commerce Clause. McLean construed the Commerce Clause to include the transport of free persons within its scope. In support of this conclusion, McLean cites the following passage from the opinion of the United States Supreme Court in Gibbons vs. Ogden: "the power to regulate commerce applies equally to the regulation of vessels employed in transporting men who pass from place to place voluntarily, and to those who pass involuntarily."

McLean wrote in his opinion, "A state cannot regulate foreign commerce, but it may do many things which more or less affect it." Thus, to McLean the next judicial task was to discern whether the New York tax is a regulation of foreign and interstate commerce or merely an exercise of legitimate State authority having an incidental effect on foreign and interstate commerce.

McLean did not consider attempts on the part of a State to defend itself from the introduction of harm to be a regulation of commerce. Thus, McLean views exclusion of infectious people from the State as a quarantine measure that is part of the State's reserved right to protect the health of its citizens and in no sense a regulation of foreign or interstate commerce. McLean further acknowledges a State may charge a fee reflecting the actual cost of the inspection for disease. McLean also acknowledges a right of States to prevent the entry of paupers to prevent the imposition of an economic burden. However, McLean did not recognize an unqualified right of the States to screen new entrants: "Except to guard its citizens against diseases and paupers, the municipal power of a state cannot prohibit the introduction of foreigners brought to this country under the authority of Congress."

McLean rejected the characterization of the New York statute as a health measure. Although the revenues were applied in the first instance to a hospital, surplus revenues were diverted to a charitable society in New York City caring for delinquent boys. To McLean, a law that demanded payment beyond a fee for actual cost of inspection was a revenue measure, with no principled limitation that could be placed on the State as to the use of that revenue. McLean insisted the law imposed a tax on passengers and crew, and that if a tax of $1.00 per passenger could be extracted by the State of New York, a higher tax could also be imposed, including in an amount that would completely stifle the commercial activity of transporting passengers into the Port of New York. McLean concluded that the New York statute at bar was a regulation of commerce and thus an intrinsic violation of the Commerce Clause.

McLean also considered the New York Law a violation of the clause of Section 8 of Article I of the United States Constitution mandating that all duties, imposts and excises shall be uniform throughout the United States. In McLean's view this clause was enforceable against the States, as well as Congress. He considered a tax on passengers entering the United States to be an "impost," and a State tax on such passengers to have the effect of making such imposts non-uniform.

McLean went beyond the facts of the case to comment (as dictum) that the tax when applied to the crew and passengers of coastal vessels traveling from other states violated the Sixth Clause of Section 9 of Article I prohibiting the imposition of duties on vessels traveling from one State to another.

McLean commented that under his view of the Commerce Clause the Massachusetts tax on immigrant passengers was also unconstitutional. McLean did not refer to his views regarding uniformity of imposts in his short discussion of the Norris case.

McLean did not join the vituperative debate concerning the manner in which the majority opinion in City of New York vs. Miln was adopted. But he did reconcile his assent to the majority opinion in the Miln decision with his opinion in the Passenger Cases by noting that the Miln case did not involve any question concerning the validity of a tax, but only the validity of a reporting requirement.