       Proposed Legislation Providing Authority for the
     Armed Forces to Recover Remains of Persons Deceased
           as a Result of Armed Forces Operations

C ongress’ authority to m ake rules for the United States armed forces under the Constitution, art.
   I, § 8, cl. 14, allow s it to enact legislation governing the recover of the remains of members of
   the arm ed forces. Any grant to the armed forces o f jurisdiction over the remains of non­
   m ilitary persons killed as a result o f armed forces operational activities, however, may exceed
   C ongress’ constitutional authority.

                                                                                   February 20, 1987

      M   em orandum       O   p in 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   eneral,

                             O f f ic e   of   L e g is l a t iv e A f f a ir s


  A proposed bill would give the armed forces “primary jurisdiction to recover
and examine the remains of (1) any member of an armed forces; or (2) any
other person, .. . whose death is believed to have been the result of any
operational activity of the armed forces.” According to the Department of
Defense, at present:
          [Jurisdiction to recover the remains and investigate the death of
          any person generally rests with the government having jurisdic­
          tion over the location where the remains were found, regardless
          of the cause or suspected cause of death. In the United States,
          such jurisdiction generally rests with State or local govern­
          ments, because Federal legislation has not preempted that right.
Consequently, “the armed forces are often denied, or are unable to obtain, the
kind of information which could be obtained from full post-mortem examinations.”
   We see no constitutional impediment to a statute giving the armed forces
primary jurisdiction over the remains of members of the armed forces. Such a
statute would seem to fall squarely within Congress’ power under Article I, § 8,
cl. 14 of the Constitution “[t]o make Rules for the Government and Regulation
of the land and naval Forces.”
   The proposed bill, however, goes further. It potentially would preempt most
state authority over the remains of anyone who is believed to have been killed
as a result of any military operations. Examples would include those killed as a
result of a military jet crashing in a residential area or those killed as a result of
poisonous gas leaked from a military transport truck. The power to make rules
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for the armed forces does not extend this far. See Kinsella v. United States ex
rel. Singleton, 361 U.S. 234 (1960). In that case, the Supreme Court rejected
the claim that Congress has power to subject civilians to court martial jurisdic­
tion under Article I, § 8, cl. 14, noting that power extends only to persons
whose “status . . . can be regarded as falling within the term ‘land and naval
Forces.’” Id. at 241 (emphasis in original). The Court continued:
              Without contradiction, the materials furnished show that mili­
           tary jurisdiction has always been based on the “status” of the
           accused, rather than on the nature of the offense. To say that
           military jurisdiction “defies definition in terms of military ‘sta­
           tus’” is to defy the unambiguous language of Art. I, § 8, cl. 14,
           as well as the historical background thereof and the precedents
           with reference thereto.
Id. at 243 (footnote omitted).
   The Necessary and Proper Clause does not enhance Congress’ power to
enact the proposed bill.1That Clause empowers Congress “[t]o make all Laws
which shall be necessary and proper for carrying into Execution [Congress’
enumerated powers], and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.”
Although the Necessary and Proper Clause affords Congress wide latitude in
the choice of means to accomplish ends within the purview of its enumerated
powers, see McCulloch v. Maryland 6, 17 U.S. (4 Wheat.) 316, 420 (1819), it
confers no additional substantive authority. Thus, if Congress’ power under
Article I, § 8, cl. 14 extends only to members of the land and naval forces, then
the Necessary and Proper Clause cannot be interpreted to give Congress the
power to regulate civilians as a means of regulating the armed forces.2 This was
the conclusion of the Court in Kinsella, supra. Thus, after concluding that
Article I, § 8, cl. 14 extends only to actual members of the armed forces, the
Court rejected the contention that the Necessary and Proper Clause authorizes
Congress to “include civilian dependents within the term ‘land and naval
forces’ as a proper incident to [the Article I, § 8, cl. 14] power and necessary to
its execution.” Id. at 247-48.3
   1It m ay, how ever, be possible to read C ongress' enum erated pow ers, in conjunction with the Necessary and
Proper C lause, to authorize the application o f certain m ilitary regulations to civilians who have voluntarily
subjected them selves to such regulation, such as the civilian pilot o f a chartered military flight. Unlike the
regulation o f civilians generally, regulation o f such individuals m ay be necessary M[t]o raise and support
A rm ies/’ and “ [t]o provide and m aintain a N avy.”
  2This is so even though as an adm inistrative m atter it may som etim es be difficult to distinguish between the
remains o f those w ho are, and those who are not, m embers o f the arm ed forces. Although there may be an
argument that a statute giving the m ilitary initial jurisdiction over remains in these more lim ited circum ­
stances w ould be constitutional, the bill as drafted is not so limited.
  3 N or can the statute be justified as a necessary and proper m eans o f carrying into execution “ the executive
Power” or that attendant to the President’s role as “C om m ander in C h ie f’ or any o f the other powers vested
“in the G overnm ent o f the United States, o r in any Department o r O fficer thereof.” The D epartm ent of
D efense does not reveal how the States* prim ary jurisdiction over the remains o f civilians killed as a result of
m ilitary operations would affect the President’s ability to exercise the executive power or to function as
C om m ander in Chief.

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   To be upheld, the proposed bill must be a proper exercise of one of Con­
gress’ other enumerated powers. Although the Supreme Court has interpreted
the Commerce Clause expansively, see Perez v. United States, 402 U.S. 146
(1971); Daniel v. Paul, 395 U.S. 298 (1969); Wickard v. Filbum , 317 U.S. 111
(1942), reliance on the commerce power in this instance presses even the
extraordinary breadth of the commerce power found by the Supreme Court,
and, in our view, disregards the enumerated power most relevant4 and in so
doing invades a core responsibility and prerogative of the States’ reserved
powers. Although we cannot say with confidence that the Court would refuse to
uphold even this extraordinary measure as an appropriate exercise of the
commerce power, see Garcia v. San Antonio Metropolitan Transit Authority,
469 U.S. 528 (1985), neither can we conclude that the bill would not exceed
Congress’ admittedly broad commerce power.
   Under these circumstances, we do not believe it is appropriate for the
administration to propose legislation that requires Congress to rely on a virtu­
ally unlimited view of the commerce power. Therefore, we suggest that the bill
be redrafted to apply only to the remains of members of the armed forces.

                                                                      D o u g l a s W . K m ie c
                                                           Deputy Assistant Attorney General
                                                               Office o f Legal Counsel




   4 T here is an additional consideration th a t is not w ithout force. If, as w e think. Congress is not em pow ered
to preem pt the States* jurisdiction over th e remains o f civilians under the enum erated pow er m ost closely
related to the purpose o f the b ill — the p o w e r to m ake rules governing the arm ed forces — then the commerce
pow er should not lightly be interpreted to circum vent the lim itation inherent in the delegation o f that power.
F or exam ple. A rticle I, § 8, cl. 4 em pow ers Congress “ [t]o establish . . . uniform Law s on the subject of
B ankruptcies throughout the United S ta te s.’1 This pow er does not authorize Congress to enact private
b ankruptcy law s. See Railway Labor Executives' Ass'n v. Gibbons, 455 U .S. 457 (1982). Thus, it w ould be
legally q u estio n ab le to interpret the C om m erce C lause to authorize C ongress to enact nonuniform bankruptcy
laws.

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