National Emergency Powers

Summary: The President of the United States has available certain powers that may be exercised in the event that the nation is threatened by crisis, exigency, or emergency circumstances (other than natural disasters, war, or near-war situations). Such powers may be stated explicitly or implied by the Constitution, assumed by the Chief Executive to be permissible constitutionally, or inferred from or specified by statute. Through legislation, Congress has made a great many delegations of authority in this regard over the past 230 years.

Summary: There are, however, limits and restraints upon the President in his exercise of emergency powers. With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion. Since 1976, the President has been subject to certain procedural formalities in utilizing some statutorily delegated emergency authority.

Summary: The National Emergencies Act (50 U.S.C. §§1601-1651) eliminated or modified some statutory grants of emergency authority, required the President to formally declare the existence of a national emergency and to specify what statutory authority activated by the declaration would be used, and provided Congress a means to countermand the President's declaration and the activated authority being sought. The development of this regulatory statute and subsequent declarations of national emergency are reviewed in this report.

F ederal law provides a variety of powers for the President to use in response to crisis, exigency, or emergency circumstances threatening the nation. They are not limited to military or war situations. Some of these authorities, deriving from the Constitution or statutory law, are continuously available to the President with little or no qualification. Others—statutory delegations from Congress—exist on a standby basis and remain dormant until the President formally declares a national emergency. Congress may modify, rescind, or render dormant such delegated emergency authority.

Until the crisis of World War I, Presidents utilized emergency powers at their own discretion. Proclamations announced the exercise of exigency authority. During World War I and thereafter, Chief Executives had available to them a growing body of standby emergency authority that became operative upon the issuance of a proclamation declaring a condition of national emergency. Sometimes such proclamations confined the matter of crisis to a specific policy sphere, and sometimes they placed no limitation whatsoever on the pronouncement. These activations of standby emergency authority remained acceptable practice until the era of the Vietnam War. In 1976, Congress curtailed this practice with the passage of the National Emergencies Act.

The exercise of emergency powers had long been a concern of the classical political theorists, including the 18 th -century English philosopher John Locke, who had a strong influence upon the Founding Fathers in the United States. A preeminent exponent of a government of laws and not of men, Locke argued that occasions may arise when the executive must exert a broad discretion in meeting special exigencies or "emergencies" for which the legislative power provided no relief or existing law granted no necessary remedy. He did not regard this prerogative as limited to wartime or even to situations of great urgency. It was sufficient if the "public good" might be advanced by its exercise.

Emergency powers were first expressed prior to the actual founding of the Republic. Between 1775 and 1781, the Continental Congress passed a series of acts and resolves that count as the first expressions of emergency authority. These instruments dealt almost exclusively with the prosecution of the Revolutionary War.

At the Constitutional Convention of 1787, emergency powers, as such, failed to attract much attention during the course of debate over the charter for the new government. It may be argued, however, that the granting of emergency powers by Congress is implicit in its Article I, Section 8, authority to "provide for the common Defense and general Welfare;" the commerce clause; its war, armed forces, and militia powers; and the "necessary and proper" clause empowering it to make such laws as are required to fulfill the executions of "the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

There is a tradition of constitutional interpretation that has resulted in so-called implied powers, which may be invoked in order to respond to an emergency situation. Locke seems to have anticipated this practice. Furthermore, Presidents have occasionally taken an emergency action that they assumed to be constitutionally permissible. Thus, in the American governmental experience, the exercise of emergency powers has been somewhat dependent upon the Chief Executive's view of the presidential office.

Perhaps the President who most clearly articulated a view of his office in conformity with the Lockean position was Theodore Roosevelt. Describing what came to be called the "stewardship" theory of the presidency, Roosevelt wrote of his "insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its constitutional powers." It was his view "that every executive officer, and above all every executive officer in high position, was a steward of the people," and he "declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it." Indeed, it was Roosevelt's belief that, for the President, "it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws."

Opposed to this view of the presidency was Roosevelt's former Secretary of War, William Howard Taft, his personal choice for and actual successor as Chief Executive. He viewed the presidential office in more limited terms, writing "that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise." In his view, such a "specific grant must be either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is," Taft concluded, "no undefined residuum of power which he can exercise because it seems to him to be in the public interest."

Between these two views of the presidency lie various gradations of opinion, resulting in perhaps as many conceptions of the office as there have been holders. One authority has summed up the situation in the following words:

Emergency powers are not solely derived from legal sources. The extent of their invocation and use is also contingent upon the personal conception which the incumbent of the Presidential office has of the Presidency and the premises upon which he interprets his legal powers. In the last analysis, the authority of a President is largely determined by the President himself.

Apart from the Constitution, but resulting from its prescribed procedures, there are statutory grants of power for emergency conditions. The President is authorized by Congress to take some special or extraordinary action, ostensibly to meet the problems of governing effectively in times of exigency. Sometimes these laws are of only temporary duration. The Economic Stabilization Act of 1970, for example, allowed the President to impose certain wage and price controls for about three years before it expired automatically in 1974. The statute gave the President emergency authority to address a crisis in the nation's economy.

Many of these laws are continuously maintained or permanently available for the President's ready use in responding to an emergency. The Defense Production Act, originally adopted in 1950 to prioritize and regulate the manufacture of military material, is an example of this type of statute.

There are various standby laws that convey special emergency powers once the President formally declares a national emergency activating them. In 1973, a Senate special committee studying emergency powers published a compilation identifying some 470 provisions of federal law delegating to the executive extraordinary authority in time of national emergency. The vast majority of them are of the standby kind—dormant until activated by the President. However, formal procedures for invoking these authorities, accounting for their use, and regulating their activation and application were established by the National Emergencies Act of 1976.

Relying upon constitutional authority or congressional delegations made at various times over the past 230 years, the President of the United States may exercise certain powers in the event that the continued existence of the nation is threatened by crisis, exigency, or emergency circumstances. What is a national emergency?

In the simplest understanding of the term, the dictionary defines emergency as "an unforeseen combination of circumstances or the resulting state that calls for immediate action." In the midst of the crisis of the Great Depression, a 1934 Supreme Court majority opinion characterized an emergency in terms of urgency and relative infrequency of occurrence as well as equivalence to a public calamity resulting from fire, flood, or like disaster not reasonably subject to anticipation. An eminent constitutional scholar, the late Edward S. Corwin, explained emergency conditions as being those that "have not attained enough of stability or recurrency to admit of their being dealt with according to rule." During congressional committee hearings on emergency powers in 1973, a political scientist described an emergency in the following terms: "It denotes the existence of conditions of varying nature, intensity and duration, which are perceived to threaten life or well-being beyond tolerable limits." Corwin also indicated it "connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal."

There are at least four aspects of an emergency condition. The first is its temporal character: An emergency is sudden, unforeseen, and of unknown duration. The second is its potential gravity: An emergency is dangerous and threatening to life and well-being. The third, in terms of governmental role and authority, is the matter of perception: Who discerns this phenomenon? The Constitution may be guiding on this question, but it is not always conclusive. Fourth, there is the element of response: By definition, an emergency requires immediate action but is also unanticipated and, therefore, as Corwin notes, cannot always be "dealt with according to rule." From these simple factors arise the dynamics of national emergency powers. These dynamics can be seen in the history of the exercise of emergency powers.

In 1792, residents of western Pennsylvania, Virginia, and the Carolinas began forcefully opposing the collection of a federal excise tax on whiskey. Anticipating rebellious activity, Congress enacted legislation providing for the calling forth of the militia to suppress insurrections and repel invasions. Section 3 of this statute required that a presidential proclamation be issued to warn insurgents to cease their activity. If hostilities persisted, the militia could be dispatched. On August 17, 1794, President Washington issued such a proclamation. The insurgency continued. The President then took command of the forces organized to put down the rebellion.

Here was the beginning of a pattern of policy expression and implementation regarding emergency powers. Congress legislated extraordinary or special authority for discretionary use by the President in a time of emergency. In issuing a proclamation, the Chief Executive notified Congress that he was making use of this power and also apprised other affected parties of his emergency action.

Over the next 100 years, Congress enacted various permanent and standby laws for responding largely to military, economic, and labor emergencies. During this span of years, however, the exercise of emergency powers by President Abraham Lincoln brought the first great dispute over the authority and discretion of the Chief Executive to engage in emergency actions.

By the time of Lincoln's inauguration (March 4, 1861), seven states of the lower South had announced their secession from the Union; the Confederate provisional government had been established (February 4, 1861); Jefferson Davis had been elected (February 9, 1861) and installed as president of the confederacy (February 18, 1861); and an army was being mobilized by the secessionists. Lincoln had a little over two months to consider his course of action.

When the new President assumed office, Congress was not in session. For reasons of his own, Lincoln delayed calling a special meeting of the legislature but soon ventured into its constitutionally designated policy sphere. On April 19, he issued a proclamation establishing a blockade on the ports of the secessionist states, "a measure hitherto regarded as contrary to both the Constitution and the law of nations except when the government was embroiled in a declared, foreign war." Congress had not been given an opportunity to consider a declaration of war.

The next day, the President ordered the addition of 19 vessels to the navy "for purposes of public defense." A short time later, the blockade was extended to the ports of Virginia and North Carolina.

By a proclamation of May 3, Lincoln ordered that the regular army be enlarged by 22,714 men, that navy personnel be increased by 18,000, and that 42,032 volunteers be accommodated for three-year terms of service. The directive antagonized many Representatives and Senators, because Congress is specifically authorized by Article I, Section 8, of the Constitution "to raise and support armies."

In his July message to the newly assembled Congress, Lincoln suggested, "These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular and a public necessity, trusting then, as now, that Congress would readily ratify them. It is believed," he wrote, "that nothing has been done beyond the constitutional competency of Congress."

Congress subsequently did legislatively authorize, and thereby approve, the President's actions regarding his increasing armed forces personnel and would do the same later concerning some other questionable emergency actions. In the case of Lincoln, the opinion of scholars and experts is that "neither Congress nor the Supreme Court exercised any effective restraint upon the President." The emergency actions of the Chief Executive were either unchallenged or approved by Congress and were either accepted or—because of almost no opportunity to render judgment—went largely without notice by the Supreme Court. The President made a quick response to the emergency at hand, a response that Congress or the courts might have rejected in law but, nonetheless, had been made in fact and with some degree of popular approval. Similar controversy would arise concerning the emergency actions of Presidents Woodrow Wilson and Franklin D. Roosevelt. Both men exercised extensive emergency powers with regard to world hostilities, and Roosevelt also used emergency authority to deal with the Great Depression. Their emergency actions, however, were largely supported by statutory delegations and a high degree of approval on the part of both Congress and the public.

During the Wilson and Roosevelt presidencies, a major procedural development occurred in the exercise of emergency powers—use of a proclamation to declare a national emergency and thereby activate all standby statutory provisions delegating authority to the President during a national emergency. The first such national emergency proclamation was issued by President Wilson on February 5, 1917. Promulgated on the authority of a statute establishing the U.S. Shipping Board, the proclamation concerned water transportation policy. It was statutorily terminated, along with a variety of other wartime measures, on March 3, 1921.

President Franklin D. Roosevelt issued the next national emergency proclamation some 48 hours after assuming office. Proclaimed March 6, 1933, on the somewhat questionable authority of the Trading with the Enemy Act of 1917, the proclamation declared a "bank holiday" and halted a major class of financial transactions by closing the banks. Congress subsequently gave specific statutory support for the Chief Executive's action with the passage of the Emergency Banking Act on March 9. Upon signing this legislation into law, the President issued a second banking proclamation, based upon the authority of the new law, continuing the bank holiday until it was determined that banking institutions were capable of conducting business in accordance with new banking policy.

Next, on September 8, 1939, President Roosevelt promulgated a proclamation of "limited" national emergency, though the qualifying term had no meaningful legal significance. Almost two years later, on May 27, 1941, he issued a proclamation of "unlimited" national emergency. This action, however, did not actually make any important new powers available to the Chief Executive in addition to those activated by the 1939 proclamation. The President's purpose in making the second proclamation was largely to apprise the American people of the worsening conflict in Europe and growing tensions in Asia.

These two war-related proclamations of a general condition of national emergency remained operative until 1947, when certain of the provisions of law they had activated were statutorily rescinded. Then, in 1951, Congress terminated the declaration of war against Germany. In the spring of the following year, the Senate ratified the treaty of peace with Japan. Because these actions marked the end of World War II for the United States, legislation was required to keep certain emergency provisions in effect. Initially, the Emergency Powers Interim Continuation Act temporarily maintained this emergency authority. It was subsequently supplanted by the Emergency Powers Continuation Act, which kept selected emergency delegations in force until August 1953. By proclamation in April 1952, President Harry S. Truman terminated the 1939 and 1941 national emergency declarations, leaving operative only those emergency authorities continued by statutory specification.

President Truman's 1952 termination, however, specifically exempted a December 1950 proclamation of national emergency he had issued in response to hostilities in Korea. This condition of national emergency would remain in force and unimpaired well into the era of the Vietnam War.

Two other proclamations of national emergency would also be promulgated before Congress once again turned its attention to these matters. Faced with a postal strike, President Richard Nixon declared a national emergency in March 1970, thereby gaining permission to use units of the Ready Reserve to assist in moving the mail. President Nixon proclaimed a second national emergency in August 1971 to control the balance of payments flow by terminating temporarily certain trade agreement provisos and imposing supplemental duties on some imported goods.

In the years following the conclusion of U.S. armed forces involvement in active military conflict in Korea, occasional expressions of concern were heard in Congress regarding the continued existence of President Truman's 1950 national emergency proclamation long after the conditions prompting its issuance had disappeared. There was some annoyance that the President was retaining extraordinary powers intended only for a time of genuine emergency and a feeling that the Chief Executive was thwarting the legislative intent of Congress by continuously failing to terminate the declared national emergency.

Growing public and congressional displeasure with the President's exercise of his war powers and deepening U.S. involvement in hostilities in Vietnam prompted interest in a variety of related matters. For Senator Charles Mathias, interest in the question of emergency powers developed out of U.S. involvement in Vietnam and the incursion into Cambodia. Together with Senator Frank Church, he sought to establish a Senate special committee to study the implications of terminating the 1950 proclamation of national emergency that was being used to prosecute the Vietnam War "to consider problems which might arise as the result of the termination and to consider what administrative or legislative actions might be necessary." Such a panel was initially chartered by S.Res. 304 as the Special Committee on the Termination of the National Emergency in June 1972, but it did not begin operations before the end of the year.

With the convening of the 93 rd Congress in 1973, the special committee was approved again with S.Res. 9 . Upon exploring the subject matter of national emergency powers, however, the mission of the special committee became more burdensome. There was not just one proclamation of national emergency in effect but four such instruments, issued in 1933, 1950, 1970, and 1971. The United States was in a condition of national emergency four times over, and with each proclamation, the whole collection of statutorily delegated emergency powers was activated. Consequently, in 1974, with S.Res. 242 , the study panel was rechartered as the Special Committee on National Emergencies and Delegated Emergency Powers to reflect its focus upon matters larger than the 1950 emergency proclamation. Its final mandate was provided by S.Res. 10 in the 94 th Congress, although its termination date was necessarily extended briefly in 1976 by S.Res. 370 . Senators Church and Mathias co-chaired the panel.

The Special Committee on National Emergencies and Delegated Emergency Powers produced various studies during its existence. After scrutinizing the U . S . Code and uncodified statutory emergency powers, the panel identified 470 provisions of federal law that delegated extraordinary authority to the executive in time of national emergency. Not all of them required a declaration of national emergency to be operative, but they were, nevertheless, extraordinary grants. The special committee also found that no process existed for automatically terminating the four outstanding national emergency proclamations. Thus, the panel began developing legislation containing a formula for regulating emergency declarations in the future and otherwise adjusting the body of statutorily delegated emergency powers by abolishing some provisions, relegating others to permanent status, and continuing others in a standby capacity. The panel also began preparing a report offering its findings and recommendations regarding the state of national emergency powers in the nation.

The special committee, in July 1974, unanimously recommended legislation establishing a procedure for the presidential declaration and congressional regulation of a national emergency. The proposal also modified various statutorily delegated emergency powers. In arriving at this reform measure, the panel consulted with various executive branch agencies regarding the significance of existing emergency statutes, recommendations for legislative action, and views as to the repeal of some provisions of emergency law.

This recommended legislation was introduced by Senator Church for himself and others on August 22, 1974, and became S. 3957 . It was reported from the Senate Committee on Government Operations on September 30 without public hearings or amendment. The bill was subsequently discussed on the Senate floor on October 7, when it was amended and passed.

Although a version of the reform legislation had been introduced in the House on September 16, becoming H.R. 16668 , the Committee on the Judiciary, to which the measure was referred, did not have an opportunity to consider either that bill or the Senate-adopted version due to the press of other business—chiefly the impeachment of President Nixon and the nomination of Nelson Rockefeller to be Vice President of the United States. Thus, the National Emergencies Act failed to be considered on the House floor before the final adjournment of the 93 rd Congress.

With the convening of the next Congress, the proposal was introduced in the House on February 27, 1975, becoming H.R. 3884 , and in the Senate on March 6, becoming S. 977 . House hearings occurred in March and April before the Subcommittee on Administrative Law and Governmental Relations of the Committee on the Judiciary. The bill was subsequently marked up and, on April 15, was reported in amended form to the full committee on a 4-0 vote. On May 21, the Committee on the Judiciary, on a voice vote, reported the bill with technical amendments. During the course of House debate on September 4, there was agreement to both the committee amendments and a floor amendment providing that national emergencies end automatically one year after their declaration unless the President informs Congress and the public of a continuation. The bill was then passed on a 388-5 yea and nay vote and sent to the Senate, where it was referred to the Committee on Government Operations.

The Senate Committee on Government Operations held a hearing on H.R. 3884 on February 25, 1976, the bill was subsequently reported on August 26 with one substantive and several technical amendments. The following day, the amended bill was passed and returned to the House. On August 31, the House agreed to the Senate amendments, clearing the proposal for President Gerald Ford's signature on September 14.

In its final report, issued in May 1976, the special committee concluded "by reemphasizing that emergency laws and procedures in the United States have been neglected for too long, and that Congress must pass the National Emergencies Act to end a potentially dangerous situation."

Other issues identified by the special committee as deserving attention in the future, however, did not fare so well. The panel, for example, was hopeful that standing committees of both houses of Congress would review statutory emergency power provisions within their respective jurisdictions with a view to the continued need for, and possible adjustment of, such authority. Actions in this regard were probably not as ambitious as the special committee expected. A title of the Federal Civil Defense Act of 1950 granting the President or Congress power to declare a civil defense emergency in the event of an attack on the United States occurred or was anticipated expired in June 1974 after the House Committee on Rules failed to report a measure continuing the statute.

A provision of emergency law was refined in May 1976. Legislation was enacted granting the President the authority to order certain selected members of an armed services reserve component to active duty without a declaration of war or national emergency. Previously, such an activation of military reserve personnel had been limited to a "time of national emergency declared by the President" or "when otherwise authorized by law."

Another refinement of emergency law occurred in 1977 when action was completed on the International Emergency Economic Powers Act (IEEPA). Reform legislation containing this statute modified a provision of the Trading with the Enemy Act of 1917, authorizing the President to regulate the nation's international and domestic finance during periods of declared war or national emergency. The enacted bill limited the President's Trading with the Enemy Act power to regulate the country's finances to times of declared war. In IEEPA, a provision conferred authority on the Chief Executive to exercise controls over international economic transactions in the future during a declared national emergency and established procedures governing the use of this power, including close consultation with Congress when declaring a national emergency to activate IEEPA. Such a declaration would be subject to congressional regulation under the procedures of the National Emergencies Act.

Other matters identified in the final report of the special committee for congressional scrutiny included

investigation of emergency preparedness efforts conducted by the executive branch, attention to congressional preparations for an emergency and continual review of emergency law, ending open-ended grants of authority to the executive, investigation and institution of stricter controls over delegated powers, and improving the accountability of executive decisionmaking.

There is some public record indication that certain of these points, particularly the first and the last, have been addressed in the past two decades by congressional overseers.

As enacted, the National Emergencies Act consisted of five titles. The first of these generally returned all standby statutory delegations of emergency power, activated by an outstanding declaration of national emergency, to a dormant state two years after the statute's approval. However, the act did not cancel the 1933, 1950, 1970, and 1971 national emergency proclamations, because the President issued them pursuant to his Article II constitutional authority. Nevertheless, it did render them ineffective by returning to dormancy the statutory authorities they had activated, thereby necessitating a new declaration to activate standby statutory emergency authorities.

Title II provided a procedure for future declarations of national emergency by the President and prescribed arrangements for their congressional regulation. The statute established an exclusive means for declaring a national emergency. Emergency declarations were to terminate automatically after one year unless formally continued for another year by the President, but they could be terminated earlier by either the President or Congress. Originally, the prescribed method for congressional termination of a declared national emergency was a concurrent resolution adopted by both houses of Congress. This type of "legislative veto" was effectively invalidated by the Supreme Court in 1983. The National Emergencies Act was amended in 1985 to substitute a joint resolution as the vehicle for rescinding a national emergency declaration.

When declaring a national emergency, the President must indicate, according to Title III, the powers and authorities being activated to respond to the exigency at hand. Certain presidential accountability and reporting requirements regarding national emergency declarations were specified in Title IV, and the repeal and continuation of various statutory provisions delegating emergency powers was accomplished in Title V.

Emergency Declarations in Effect and Emergency Declarations No Longer in Effect

Since the 1976 enactment of the National Emergencies Act, various national emergencies have been declared pursuant to its provisions. Some were subsequently revoked, while others remain in effect. Table 1 displays the number of national emergencies in effect (some may refer to these as "active") and the number of national emergencies no longer in effect (some may refer to these as "inactive"), by President. Detailed information regarding the 31 national emergencies in effect may be found in Table 2 . Similar information regarding the 22 national emergencies no longer in may be found in Table 3 .

The second column in Table 2 and Table 3 identifies the national emergency declaration, which is either an executive order (E.O.) or a presidential proclamation (Proc.).

Table 3 includes declared national emergencies that are no longer in effect.

The development, exercise, and regulation of emergency powers, from the days of the Continental Congress to the present, reflect at least one highly discernable trend: Those authorities available to the executive in time of national crisis or exigency have, since the time of the Lincoln Administration, come to be increasingly rooted in statutory law. The discretion available to a Civil War President in his exercise of emergency power has been harnessed, to a considerable extent, in the contemporary period.

Due to greater reliance upon statutory expression, the range of this authority has come to be more circumscribed, and the options for its use have come to be regulated procedurally through the National Emergencies Act. Since its enactment the National Emergencies Act has not been revisited by congressional overseers. The 1976 report of the Senate Special Committee on National Emergencies suggested that the prospect remains that further improvements and reforms in this policy area might be pursued and perfected.

An anomaly in the activation of emergency powers appears to have occurred on September 8, 2005, when President George W. Bush issued a proclamation suspending certain wage requirements of the Davis-Bacon Act in the course of the federal response to the Gulf Coast disaster resulting from Hurricane Katrina. Instead of following the historical pattern of declaring a national emergency to activate the suspension authority, the President set out the following rationale in the proclamation: "I find that the conditions caused by Hurricane Katrina constitute a 'national emergency' within the meaning of section 3147 of title 40, United States Code." A more likely course of action would seemingly have been for the President to declare a national emergency pursuant to the National Emergencies Act and to specify that he was, accordingly, activating the suspension authority. Although the propriety of the President's action in this case might have been ultimately determined in the courts, the proclamation was revoked on November 3, 2005, by a proclamation in which the President cited the National Emergencies Act as authority, in part, for his action.


Mail and Wire Fraud: An Abbreviated Overview of Federal Criminal Law

Summary: The mail and wire fraud statutes are exceptionally broad. Their scope has occasionally given the courts pause. Nevertheless, prosecutions in their name have brought to an end schemes that have bilked victims out of millions, and sometimes billions, of dollars. The statutes proscribe (1) causing the use of the mail or wire communications, including email; (2) in conjunction with a scheme to intentionally defraud another of money or property; (3) by means of a material deception. The offenses, along with attempts or conspiracies to commit them, carry a term of imprisonment of up to 30 years in some cases, followed by a term of supervised release. Offenders also face the prospect of fines, orders to make restitution, and forfeiture of their property.

Summary: The mail and wire fraud statutes overlap with a surprising number of other federal criminal statutes. Conduct that supports a prosecution under the mail or wire fraud statutes will often support prosecution under one or more other criminal provision(s). These companion offenses include (1) those that use mail or wire fraud as an element of a separate offense, like racketeering or money laundering; (2) those that condemn fraud on some jurisdictional basis other than use of the mail or wire communications, like those that outlaw defrauding the federal government or federally insured banks; and (3) those that proscribe other deprivations of honest services (i.e., bribery and kickbacks), like the statutes that ban bribery of federal officials or in connection with federal programs.

Summary: Among the crimes for which mail or wire fraud may serve as an element, RICO (Racketeer Influenced and Corrupt Organizations Act) outlaws employing the patterned commission of predicate offenses to conduct the affairs of an enterprise that impacts commerce. Money laundering consists of transactions involving the proceeds of a predicate offense in order to launder them or to promote further predicate offenses.

Summary: The statutes that prohibit fraud in some form or another are the most diverse of the mail and wire fraud companions. Congress modeled some after the mail and wire fraud statutes, incorporating elements of a scheme to defraud or obtain property by false pretenses into statutes that outlaw bank fraud, health care fraud, securities fraud, and foreign labor contracting fraud. Congress designed others to protect the public fisc by proscribing false claims against the United States, conspiracies to defraud the United States by obstructing its functions, and false statements in matters within the jurisdiction of the United States and its departments and agencies.

Summary: Federal bribery and kickback statutes populate the third class of wire and mail fraud companions. One provision bans offering or accepting a thing of value in exchange for the performance or forbearance of a federal official act. Another condemns bribery of faithless agents in connection with federally funded programs and activities. A third, the Hobbs Act, outlaws bribery as a form of extortion under the color of official right.

Summary: The fines, prison sentences, and other consequences that follow conviction for wire and mail fraud companions vary considerably, with fines from not more than $25,000 to not more than $2 million and prison terms from not more than five years to life.

Some time ago, a federal prosecutor referred to the mail and wire fraud statutes as "our Stradivarius, our Colt 45, our Louisville Slugger … and our true love." Not everyone shares the prosecutor's delight. Commentators have argued that the statutes "have long provided prosecutors with a means by which to salvage a modest, but dubious, victory from investigations that essentially proved unfruitful." Federal judges have also expressed concern from time to time, observing that the "mail and wire fraud statutes have 'been invoked to impose criminal penalties upon a staggeringly broad swath of behavior,' creating uncertainty in business negotiations and challenges to due process and federalism." Nevertheless, mail and wire fraud prosecutions have brought to an end schemes that bilked victims of millions, and sometimes billions, of dollars.

The federal mail and wire fraud statutes outlaw schemes to defraud that involve the use of mail or wire communications. Both condemn fraudulent conduct that may also come within the reach of other federal criminal statutes. Both may serve as racketeering and money laundering predicate offenses. Both are punishable by imprisonment for not more than 20 years; for not more than 30 years, if the victim is a financial institution or the offense is committed in the context of major disaster or emergency. Both entitle victims to restitution. Both may result in the forfeiture of property.

The mail and wire fraud statutes are essentially the same, except for the medium associated with the offense—the mail in the case of mail fraud and wire communication in the case of wire fraud. As a consequence, the interpretation of one is ordinarily considered to apply to the other. In construction of the terms within the two, the courts will frequently abbreviate or adjust their statement of the elements of a violation to focus on the questions at issue before them. As treatment of the individual elements makes clear, however, there seems little dispute that conviction requires the government to prove (1) the use of either mail or wire communications in the foreseeable furtherance, (2) of a scheme and intent to defraud another of either property or honest services, (3) involving a material deception.

The wire fraud statute applies to anyone who "transmits or causes to be transmitted by wire, radio, or television communication in interstate or foreign commerce any writings ... for the purpose executing [a] ... scheme or artifice." The mail fraud statute is similarly worded and applies to anyone who "... for the purpose of executing [a] ... scheme or artifice ... places in any post office ... or causes to be delivered by mail ... any ... matter."

The statutes require that a mailing or wire communication be in furtherance of a scheme to defraud. The mailing or communication need not be an essential element of the scheme, as long as it "is incident to an essential element of the scheme." A qualifying mailing or communication, standing alone, may be routine, innocent, or even self-defeating, because "[t]he relevant question at all times is whether the mailing is part of the execution of the scheme as conceived by the perpetrator at the time, regardless of whether the mailing later, through hindsight, may prove to have been counterproductive." The element may be satisfied by mailings or communications "designed to lull the victim into a false sense of security, postpone inquiries or complaints, or make the transaction less suspect." The element may also be satisfied by mailings or wire communications used to obtain the property that is the object of the fraud.

A defendant need not personally have mailed or wired a communication; it is enough that he "caused" a mailing or transmission of a wire communication in the sense that the mailing or transmission was the reasonable foreseeable consequence of his intended scheme.

The mail and wire fraud statutes "both prohibit, in pertinent part, 'any scheme or artifice to defraud[,]' or to obtain money or property 'by means of false or fraudulent pretenses, representations, or promises," or to deprive another of the right to honest services by such means. From the beginning, Congress intended to reach a wide range of schemes to defraud, and has expanded the concept whenever doubts arose. It added the second prong—obtaining money or property by false pretenses, representations, or promises—after defendants had suggested that the term "scheme to defraud" covered false pretenses concerning present conditions but not representations or promises of future conditions. More recently, it added 18 U.S.C. § 1346 to make it clear the term "scheme to defraud" encompassed schemes to defraud another of the right to honest services. Even before that adornment, the words were understood to "refer 'to wronging one in his property rights by dishonest methods or schemes,' and 'usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.'"

As a general rule, the crime is done when the scheme is hatched and an attendant mailing or interstate phone call or email has occurred. Thus, the statutes are said to condemn a scheme to defraud regardless of its success. It is not uncommon for the courts to declare that to demonstrate a scheme to defraud the government needs to show that the defendant's "communications were reasonably calculated to deceive persons of ordinary prudence and comprehension." Even a casual reading, however, might suggest that the statutes also cover a scheme specifically designed to deceive a naïve victim. Nevertheless, the courts have long acknowledged the possibility of a "puffing" defense, and there may be some question whether the statutes reach those schemes designed to deceive the gullible though they could not ensnare the reasonably prudent. In any event, the question may be more clearly presented in the context of the defendant's intent and the materiality of the deception, a focus on the scheme's creator rather than its victim.

Defrauding or to Obtain Money or Property . The mail and wire fraud statutes speak of schemes to defraud or to obtain money or property by means of false or fraudulent pretenses. The Supreme Court has said that the phrase "to defraud" and the phrase "to obtain money or property" do not represent separate crimes, but instead the phrase "obtain money or property" describes what constitutes a scheme to defraud. In later look-alike offenses, Congress specifically numerated the two phrases. The bank fraud statute, for example, applies to "whoever knowingly executes … a scheme or artifice – (1) to defraud a financial institution; or (2) to obtain any of the money, funds, credits, assets, securities, or other property owned by … a financial institution, by means of false or fraudulent pretenses …" It left the mail and wire fraud statutes, however, unchanged.

The mail and wire fraud statutes clearly protect against deprivations of tangible property. They also protect certain intangible property rights, but only those that have value in the hands of the victim of a scheme. "To determine whether a particular interest is property for purposes of the fraud statutes, [courts] look to whether the law traditionally has recognized and enforced it as a property right."

Neither the mail nor the wire fraud statute exhibits an explicit reference to materiality. Yet materiality is an element of each offense, because at the time of the statutes' enactment, the word "defraud" was understood to "require[] a misrepresentation or concealment of [a] material fact." Thus, other than in an honest services context, a "scheme to defraud" for mail or wire fraud purposes must involve a material misrepresentation of some kind. "A misrepresentation is material if it is capable of influencing the intended victim."

Again, other than in the case of honest services, "'intent to defraud' requires an intent to (1) deceive, and (2) cause some harm to result from the deceit. A defendant acts with the intent to deceive when he acts knowingly with the specific intent to deceive for the purpose of causing pecuniary loss to another or bringing about some financial gain to himself."

A defendant has a complete defense if he believes the deceptive statements or promises to be true or otherwise acts under circumstances that belie an intent to defraud. Yet, a defendant has no defense if he blinds himself to the truth. Nor is it a defense if he intends to deceive but feels his victim will ultimately profit or be unharmed.

Some time ago, the Supreme Court held in McNally v. United States that the protection of the mail fraud statute, and by implication the protection of the wire fraud statute, did not extend to "the intangible right of the citizenry to good government." Soon after McNally , Congress enlarged the mail and wire fraud protection to include the intangible right to honest services, by defining the "term 'scheme or artifice to defraud' [to] include[s] a scheme or artifice to deprive another of the intangible right to honest services." Lest the expanded definition be found unconstitutionally vague, the Court in Skilling v. United States limited its application to cases of bribery or kickbacks. The Court in Skilling supplied only a general description of the bribery and kickbacks condemned in the honest-services statute. Subsequent lower federal courts have often looked to the general federal law relating to bribery and kickbacks for the substantive elements of honest services bribery. In this context, bribery requires "a quid pro quo—a specific intent to give … something of value in exchange for an official act." And an "official act" means no more than an officer's formal exercise of governmental power in the form of a "decision or action on a 'question, matter, cause, suit, proceeding or controversy'" before him.

The definition of the word "kickback" quoted by the Court in Skilling has since been reassigned, and the courts have cited the dictionary definition on occasion.

Except for the elements of a scheme to defraud in the form of a bribe and a kickback, honest services fraud, as an adjunct of the mail and wire fraud statutes, draws its elements and the sanctions that attend the offense from the mail and wire fraud statutes.

Aiding and Abetting, Attempt, and Conspiracy

Attempting or conspiring to commit mail or wire fraud or aiding and abetting the commission of those offenses carries the same penalties as the underlying offense. "In order to aid and abet another to commit a crime it is necessary that a defendant in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."

"Conspiracy to commit wire fraud under 18 U.S.C. § 1349 requires a jury to find that (1) two or more persons agreed to commit wire fraud and (2) the defendant willfully joined the conspiracy with the intent to further its unlawful purpose." As a general rule, a conspirator is liable for any other offenses that a co-conspirator commits in the foreseeable furtherance of the conspiracy. Such liability, however, extends only until the objectives of the conspiracy have been accomplished or the defendant has withdrawn from the conspiracy.

Where attempt has been made a separate offense, as it has for mail and wire fraud, conviction ordinarily requires that the defendant commit a substantial step toward the completion of the underlying offense with the intent to commit it. It does not, however, require the attempt to have been successful. Unlike conspiracy, a defendant may not be convicted of both the substantive offense and the lesser included crime of attempt to commit it.

Mail and wire fraud are each punishable by imprisonment for not more than 20 years and a fine of not more than $250,000 (not more than $500,000 for organizations), or fine of not more than $1 million and imprisonment for not more than 30 years if the victim is a financial institution or the offense was committed in relation to a natural disaster. It is also subject to a mandatory minimum two-year term of imprisonment if identify theft is used during and in furtherance of the fraud. Conviction may also result in (1) probation, (2) a term of supervised release, (3) a special assessment, (4) a restitution order, and/or (5) a forfeiture order.

Supervised Release and Special Assessments . Supervised release is a form of parole-like supervision imposed after a term of imprisonment has been served. Although imposition of a term of supervised release is discretionary in mail and wire fraud cases, the Sentencing Guidelines recommend its imposition in all felony cases. The maximum supervised release term for wire and mail fraud generally is three years—five years when the defendant is convicted of the mail or wire fraud against a financial institution that carries a 30-year maximum term of imprisonment. Release will be subject to a number of conditions, violation of which may result in a return to prison for not more than two years (not more than three years if the original crime of conviction carried a 30-year maximum). There are three mandatory conditions: (1) commit no new crimes; (2) allow a DNA sample to be taken; and (3) submit to periodic drug testing. The court may suspend the drug testing condition, although it is under no obligation to do so even though the defendant has no history of drug abuse and drug abuse played no role in the offense.

Most courts will impose a standard series of conditions in addition to the mandatory condition of supervised release. The Sentencing Guidelines recommend that these include the payment of any fines, restitution, and special assessments that remain unsatisfied. Defendants convicted of mail or wire fraud must pay a special assessment of $100.

Restitution . Restitution is ordinarily required of those convicted of mail or wire fraud. The victims entitled to restitution include those directly and proximately harmed by the defendant's crime of conviction, and "in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity," like mail and wire fraud, "any person directly harmed by the defendant's conduct in the course of the scheme, conspiracy, or pattern."

Forfeiture . Property that constitutes the proceeds of mail or wire fraud is subject to confiscation by the United States. It may be confiscated pursuant to either civil forfeiture or criminal forfeiture procedures. Civil forfeiture proceedings are conducted that treat the forfeitable property as the defendant. Criminal forfeiture proceedings are conducted as part of the criminal prosecution of the property owner.

The mail and wire fraud statutes essentially outlaw dishonesty. Due to their breadth, misconduct that constitutes mail or wire fraud may constitute a violation of one or more other federal criminal statutes as well. This overlap occurs perhaps most often with respect to (1) crimes for which mail or wire fraud are elements ("predicate offenses") of another offense; (2) fraud proscribed under jurisdictional circumstances other than mail or wire use; and (3) honest services fraud in the form of bribery or kickbacks.

Some federal crimes have as an element the commission of some other federal offense. The money laundering statute, for example, outlaws laundering the proceeds of various predicate offenses. The racketeering statute outlaws the commission of a pattern of predicate offenses to operate a racketeering enterprise. Mail and wire fraud are predicate racketeering and money laundering predicate offenses.

RICO . The Racketeer Influenced and Corrupt Organizations (RICO) provisions outlaw acquiring or conducting the affairs of an enterprise, engaged in or whose activities affect interstate commerce, through loan sharking or the patterned commission of various other predicate offenses. The racketeering-conduct and conspiracy-to-engage-in-racketeering-conduct appear to be the RICO offenses most often built on wire or mail fraud violations. The elements of the RICO conduct offense are (1) conducting the affairs; (2) of an enterprise; (3) engaged in activities in or that impact interstate or foreign commerce; (4) through a pattern; (5) of racketeering activity. "Racketeering activity" means, among other things, any act that is indictable under either the mail or wire fraud statutes. As for pattern, a RICO pattern "requires at least two acts of racketeering activity. The racketeering predicates may establish a pattern if they [were] related and … amounted to, or threatened the likelihood of, continued criminal activity.'" The pattern of predicate offenses must be used by someone employed by or associated with a qualified enterprise to conduct or participate in its activities. "Congress did not intend to extend RICO liability … beyond those who participated in the operation and management of an enterprise through a pattern of racketeering activity." Nevertheless, "liability under § 1962(c) is not limited to upper management … An enterprise is operated not just by upper management but also by lower rung participants." The enterprise may be either any group of individuals, any legal entity, or any group "associated in fact." "Nevertheless, 'an association-in-fact enterprise must have at least three structural features: a purpose, relationships among those associated with the enterprise and longevity sufficient to permit those associates to pursue the enterprise's purpose.'" Moreover, qualified enterprises are only those that "engaged in, or the activities of which affect, interstate or foreign commerce." Penalties : Imprisonment for not more than 20 years and a fine of not more than $250,000 (not more than $500,000 for organizations).

Money Laundering . Mail and wire fraud are both money laundering predicate offenses by virtue of their status as RICO predicates. The most commonly prosecuted federal money laundering statute, 18 U.S.C. §1956, outlaws, among other things, knowingly engaging in a financial transaction involving the proceeds generated by a "specified unlawful activity" (a predicate offense) for the purpose (1) of laundering the proceeds (i.e., concealing their source or ownership), or (2) of promoting further predicating offenses.

To establish the concealment offense, the government must establish that "(1) [the] defendant conducted, or attempted to conduct a financial transaction which in any way or degree affected interstate commerce or foreign commerce; (2) the financial transaction involved proceeds of illegal activity; (3) [the] defendant knew the property represented proceeds of some form of unlawful activity, [such as mail or wire fraud]; and (4) [the] defendant conducted or attempted to conduct the financial transaction knowing the transaction was designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership or the control of the proceeds of specified unlawful activity."

To prove the promotional offense, "the Government must show that the defendant: (1) conducted or attempted to conduct a financial transaction; (2) which the defendant then knew involved the proceeds of unlawful activity; (3) with the intent to promote or further unlawful activity." Nothing in either provision suggests that the defendant must be shown to have committed the predicate offense. Moreover, simply establishing that the defendant spent or deposited the proceeds of the predicate offense is not enough without proof of an intent to promote or conceal. Penalties : Imprisonment for not more than 20 years and a fine of not more than $500,000.

Merely depositing the proceeds of a money laundering predicate offense does not alone constitute a violation of Section 1956. It is enough for a violation of 18 U.S.C. § 1957, however, if more than $10,000 is involved. Section 1957 uses Section 1956's definition of specified unlawful activities. Thus, mail and wire fraud violations may serve as the basis for the prosecution under Section 1957. "Section 1957 differs from Section 1956 in two critical respects: It requires that the property have a value greater than $10,000, but it does not require that the defendant know of [the] design to conceal [or promote] aspects of the transaction or that anyone have such a design." Penalties: Imprisonment for not more than 10 years and a fine of not more than $250,000 (not more than $500,000) for organizations.

Fraud Under Other Jurisdictional Circumstances

This category includes the offenses that were made federal crimes because they involve fraud against the United States or because they are other frauds that share elements with the mail and wire fraud. The most prominent are the proscriptions against defrauding the United States by the submission of false claims, conspiracy to defraud the United States, and material false statements in matters within the jurisdiction of the United States. Bank fraud, health care fraud, securities and commodities fraud, and fraud in foreign labor contracting are all Chapter 63 companions of mail and wire fraud.

Defrauding the United States — False Claims . Section 287 outlaws the knowing submission of a false claim against the United States. "To prove a false claim, the government must prove that (1) [the defendant] 'made and presented' to the government a claim, (2) 'the claim was false, fictitious, or fraudulent,' (3) [the defendant] knew the claim was false, fictitious, or fraudulent, and (4) 'the claim was material' to the government." Penalti es : Imprisonment for not more than five years and a fine of not more than $250,000 (not more than $500,000 for organizations).

Conspiracy to Defraud the U nited S tates . The general conspiracy statute has two parts. It outlaws conspiracies to violate the laws of the United States. More relevant here, it also outlaws conspiracies to defraud the United States. "To convict on a charge under the 'defraud' clause, the government must show that the defendant (1) entered into an agreement (2) to obstruct a lawful government function (3) by deceitful or dishonest means and (4) committed at least one overt act in furtherance of the conspiracy." Thus, the "fraud covered by the statute reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any department of the Government" by "deceit, craft or trickery, or at least by means that are dishonest." Unlike mail and wire fraud, the government need not show that the scheme was designed to deprive another of money, property, or honest services; it is enough to show that the scheme is designed to obstruct governmental functions. Penalties : Imprisonment for not more than five years and a fine of not more than $250,000 (not more than $500,000 for organizations).

False Statements . Section 1001 outlaws knowingly and willfully making a material false statement on a matter within the jurisdiction of the executive, legislative, or judicial branch of the federal government. A matter is material for purposes of Section 1001 when "it has a natural tendency to influence, or is capable of influencing, the decision of" the individual or entity to whom it is addressed. A matter is within the jurisdiction of a federal entity "when it has the power to exercise authority in a particular matter" and federal jurisdiction "may exist when false statements [are] made to state or local government agencies receiving federal support or subject to federal regulation." Penalties : Imprisonment for not more than five years and a fine of not more than $250,000 (not more than $500,000 for organizations).

Fraud Elsewhere in Chapter 63. Chapter 63 contains four other fraud proscriptions in addition to mail and wire fraud: bank fraud, health care fraud, securities and commodities fraud, and fraud in foreign labor contracting. Each relies on a jurisdictional base other than use of the mail or wire communications.

Bank Fraud . The bank fraud statute outlaws (1) schemes to defraud a federally insured financial institution, and (2) schemes to falsely obtain property from such an institution. To establish the bank-property scheme to defraud offense, "the Government must prove: (1) the defendant knowingly executed or attempted to execute a scheme or artifice to defraud a financial institution; (2) the defendant did so with the intent to defraud a financial institution; and (3) the financial institution was federally insured."

As for the bank-custody offense, "the government must prove (1) that a scheme existed to obtain moneys, funds, or credit in the custody of a federally-insured bank by fraud; (2) that the defendant participated in the scheme by means of material false pretenses, representations, or promises; and (3) that the defendant acted knowingly." Penalties : Imprisonment for not more than 30 years and a fine of not more than $1 million.

Health Care Fraud . The health care fraud provision follows the pattern of other Chapter 63 offenses. It condemns schemes to defraud. The schemes it proscribes include honest services fraud in the form of bribery and kickbacks. Attempts and conspiracies to violate its prohibitions carry the same penalties as the complete offense it describes. It is often prosecuted along with other related offenses. Parsed to its elements, the section declares, "[a] Whoever [b] knowingly and willfully [c] executes or attempts to execute [d] a scheme or artifice (1) to defraud any health care benefit program, or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any money or property owned by, or under the custody or control of, any health care benefit program [e] in connection with the delivery of or payment for health care benefits, items, or services shall be …" Penalties : A fine of not more than $250,000 (not more than $500,000 for organizations) and (1) if death results, imprisonment for life or any term of years; (2) if serious bodily injury results, imprisonment for 20 years; (3) otherwise, imprisonment for not more than 10 years.

Securities and Commodities Fraud . Section 1348, the securities and commodities fraud prohibition, continues the progression of separating its defrauding feature from its obtaining-property feature. The elements of defrauding offense "are (1) fraudulent intent, (2) a scheme or artifice to defraud, and (3) a nexus with a security." To prove a violation of Section 1348(2), the government must establish that the defendant (1) executed, or attempted to execute, a scheme or artifice; (2) with fraudulent intent; (3) in order to obtain money or property; (4) by material false or fraudulent pretenses, representations, or promises. Penalties : Imprisonment for not more than 25 years and fines of not more than $250,000 (not more than $500,000 for organizations).

Fraud in Foreign Labor Contracting . "The substantive offense of fraud in foreign labor contracting [under 18 U.S.C. § 1351] occurs when someone: (1) recruits, solicits, or hires a person outside the United States, or causes another person to do so, or attempts to do so; (2) does so by means of materially false or fraudulent pretenses, representations or promises regarding that employment; and (3) acts knowingly and with intent to defraud." The offense occurs outside the United States when related to a federal contract or U.S. presence abroad. Penalties : Imprisonment for not more than five years and a fine of not more than $250,000 (not more than $500,000 for an organization).

Honest Services Fraud (Bribery and Kickbacks) Elsewhere

After the Supreme Court's 2010 decision in Skillin g v. United States , honest services mail and wire fraud consists of bribery and kickback schemes furthered by use of the mail or wire communications. Mail and wire fraud aside, the principal bribery and kickback statutes include 18 U.S.C. §§ 201(b)(1) (bribery of federal officials), 666 (bribery relating to federal programs), 1951 (extortion under color of official right); 15 U.S.C §§ 78dd-1 to 78dd-3 (foreign corrupt practices); and 42 U.S.C. § 1320a-7b (Medicare/Medicaid anti-kickback).

Bribery of Federal Officials . Conviction for violation of Section 201(b)(1) "requires a showing that something of value was corruptly ... offered or promised to a public official ... or corruptly ... sought ... or agreed to be received by a public official with intent ... to influence any official act ... or in return for 'being influenced in the performance of any official act."

The hallmark of the offense is a corrupt quid pro quo, "a specific intent to give or receive something of value in exchange for an official act." The public officials covered include federal officers and employees, those of the District of Columbia, and those who perform tasks for or on behalf of the United States or any of its departments or agencies. The official acts that constitute the objective of the corrupt bargain include any decision or action relating to any matter coming before an individual in his official capacity. Penalti es : Imprisonment for up to 15 years, a fine of up to $250,000 (up to $500,000 for an organization).

Bribery and Fraud Related to Federal Programs . Section 666 outlaws both (1) fraud and (2) bribery by the faithless agents of state, local, tribal or private entities—that receive more than $10,000 in federal benefits—in relation to a transaction of $5,000 or more. "A violation of Section 666(a)(1)(A) requires proof of five elements. The government must prove that: (1) a defendant was an agent of an organization, government, or agency; (2) in a one-year period that organization, government, or agency received federal benefits in excess of $10,000; (3) a defendant … obtained by fraud … ; (4) … property owned by, or in the care, custody, or control of, the organization, government, or entity; and (5) the value of that property was at least $5,000."

"A person is guilty under § 666[(a)(1)(B)] if he, being an agent of an organization, government, or governmental agency that receives federal-program funds, corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more." Penalties : Imprisonment for not more than 10 years and a fine of not more than $250,000 (not more than $500,000 for organizations).

Hobbs Act . The Hobbs Act, 18 U.S.C. § 1951, outlaws obtaining the property of another under "color of official right," in a manner that has an effect on interstate commerce. Conviction requires the government to prove that the defendant "(1) was a government official; (2) who accepted property to which she was not entitled; (3) knowing that she was not entitled to the property; and (4) knowing that the payment was given in return for officials acts: (5) which had at least a de minimis effect on commerce." Conviction does not require that the public official sought or induced payment: "the government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." Penalties : Imprisonment for not more than 20 years and a fine of not more than $250,000 (not more than $500,000 for an organization).

Foreign Corrupt Practices . The bribery provisions of the Foreign Corrupt Practices Act (FCPA) are three: 15 U.S.C. §§ 78dd-1(trade practices by issuers), 78dd-2 (trade practices by domestic concerns), and 78dd-3 (trade practices by others within the United States). Other than the class of potential defendants, the elements of the three are comparable. They "make[] it a crime to: (1) willfully; (2) make use of the mail or any means or instrumentality of interstate commerce; (3) corruptly; (4) in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to; (5) any foreign official; (6) for purposes of [either] influencing any act or decision of such foreign official in his official capacity [or] inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official [or] securing any improper advantage; (7) in order to assist such [corporation] in obtaining or retaining business for or with, or directing business to, any person." None of the three proscriptions apply to payments "to expedite or to secure the performance of a routine governmental action," and each affords defendants an affirmative defense for payments that are lawful under the applicable foreign law or regulation. Penalties : Imprisonment for not more than five years and a fine of not more than $100,000 (not more than $2 million for organizations).

Medicare Kickbacks . The Medicare/Medicaid kickback prohibition in 42 U.S.C. 1320a-7b(b) outlaws "knowingly and willfully [offering or paying], soliciting [or] receiving, any remuneration (including any kickback) ... (A) to induce the referral of [, or (B) the purchase with respect to] Medicare [or] Medicaid beneficiaries ... any item or service for which payment may be made in whole or in part under the Medicare [or] Medicaid programs...." Penalties : Imprisonment for not more than five years and a fine of not more than $25,000.


Congressional Gold Medals: Background, Legislative Process, and Issues for Congress

Summary: Senators and Representatives are frequently asked to support or sponsor proposals recognizing historic events and outstanding achievements by individuals or institutions. Among the various forms of recognition that Congress bestows, the Congressional Gold Medal is often considered the most distinguished. Through this venerable tradition—the occasional commissioning of individually struck gold medals in its name—Congress has expressed public gratitude on behalf of the nation for distinguished contributions for more than two centuries. Since 1776, this award, which initially was bestowed on military leaders, has also been given to such diverse individuals as Sir Winston Churchill and Bob Hope, George Washington and Robert Frost, Joe Louis and Mother Teresa of Calcutta.

Summary: Congressional gold medal legislation generally has a specific format. Once a gold medal is authorized, it follows a specific process for design, minting, and awarding. This process includes consultation and recommendations by the Citizens Coinage Advisory Commission (CCAC) and the U.S. Commission of Fine Arts (CFA), pursuant to any statutory instructions, before the Secretary of the Treasury makes the final decision on a gold medal's design. Once the medal has been struck, a ceremony will often be scheduled to formally award the medal to the recipient.

Summary: In recent years, the number of gold medals awarded has increased, and some have expressed interest in examining the gold medal awarding process. Should Congress want to make such changes, several individual and institutional options might be available. The individual options include decisions made by Members of Congress as to what individual or groups might be honored; potential specification of gold medal design elements; and where gold medals for groups might be housed once the award is made. The institutional options could include House, Senate, or committee rules for the consideration of gold medal legislation and whether statutory standards on the number of gold medals issued per year or per Congress might be established for gold medals.

Since the late 1700s, Congress has expressed public gratitude to individuals and groups by awarding medals and other similar decorations. The first Congressional Gold Medals were issued by the Continental Congress. Since that time, Congress has awarded gold medals to express public gratitude for distinguished contributions, dramatize the virtues of patriotism, and perpetuate the remembrance of great events. This tradition of authorizing individually struck gold medals bearing the portraits or actions of honorees is rich with history.

Although Congress has approved legislation stipulating specific requirements for numerous other awards and decorations, there are no permanent statutory provisions specifically relating to the creation of Congressional Gold Medals. When such an award has been deemed appropriate, Congress has, by special action, provided for the creation of a personalized medal to be given in its name.

The first Congressional Gold Medals were issued by the Continental Congress. As initially conceived, Congressional Gold Medals were awards "imbued with the conviction that only the very highest achievements [were] entitled to such a distinction, and that the value of a reward is enhanced by its rarity!" At that time, the Continental Congress concluded there was no better way to honor "and preserve the memory of illustrious characters and splendid events than medals—whether we take into consideration the imperishable nature of the substance whence they are formed, the facility of multiplying copies, or the practice of depositing them in the cabinets of the curious." The first gold medals were struck in Paris under the direction of Colonel David Humphrey.

Following a long-standing historical practice, Congress commissioned gold medals as tributes for what were considered to be the most distinguished achievements. Silver and bronze medals, and ceremonial swords, were awarded for less eminent, but still notable, accomplishments. However, only the gold medal has been continuously awarded to the present day.

The first Congressional Gold Medal was authorized on March 25, 1776, for George Washington, then commander of the Continental Army, for his "wise and spirited conduct" in bringing about British evacuation of Boston. During the next 12 years, the Continental Congress authorized an additional six gold medals for Revolutionary military leaders. Table 1 lists the Congressional Gold Medals issued by the Continental Congress, the year, the awardee, and the reason the medal was authorized.

The gold medal conferred upon Major Henry "Light Horse Harry" Lee for his "remarkable prudence" and "bravery" during the surprise raid of Paulus Hook, NJ, was the first to be struck in the United States.

Following the ratification of the Constitution, the first two Congressional Gold Medals were given in 1800 to Captain Thomas Truxtun for his gallant effort during the action between the U.S. frigate Constellation and the French ship La Vengeance and in 1805 to Commodore Edward Preble for gallantry and good conduct during the War with Tripoli. After those medals were awarded, Congress issued gold medals primarily for military achievements in the War of 1812 and the Mexican War. All told, 27 gold medals were awarded for the War of 1812, and a series of medals were awarded for expeditions led by Major General Zachary Taylor and Major General Winfield Scott in the Mexican War. General Taylor received three Congressional Gold Medals, while General Scott received one.

In 1854, Congress began to broaden the scope of activities that merited a Congressional Gold Medal. This change was prompted by Commander Duncan N. Ingraham of the USS St. Louis 's rescue of Martin Koszta from illegal seizure and imprisonment about the Austrian war-brig Hussar . Subsequently, gold medals were issued to several individuals recognized for nonmilitary heroic activities or their work in specific fields. For example, in 1864 Cornelius Vanderbilt was honored for donating a steamship to the United States; in 1867 Cyrus W. Field was praised for his work in the laying of the transatlantic cable; and Private George F. Robinson was awarded for saving Secretary of State William H. Seward from an assassination attempt. At this time, Congress also established the Medal of Honor as a military award and increasingly focused the Congressional Gold Medal as an award for individuals and events.

In the 20 th and 21 st centuries, Congress continued to broaden the scope of Congressional Gold Medals to include recognition of excellence in such varied fields as the arts, athletics, aviation, diplomacy, entertainment, exploration, medicine, politics, religion, and science. Several of the following individuals were the first in their specialties to be awarded gold medals:

Composer George M. Cohan (1936) was the first entertainer to receive a gold medal, for his patriotic songs "Over There" and "A Grand Old Flag." Wilbur and Orville Wright (1909) were the first aeronautical or space pioneers to receive a gold medal, for their achievements in demonstrating to the world the potential of aerial navigation. Lincoln Ellsworth (1926) was the first explorer honored, for his polar flight in 1925 and transpolar flight in 1926. Major Walter Reed and his associates (1928) were the first scientists honored, for discovering the cause and means of transmission of yellow fever in 1921. Vice President Alben W. Barkley (1949) was the first political honoree.

In the late 20 th and early 21 st centuries, numerous other individuals have been honored for a variety of contributions including civil rights activism and humanitarian contributions. For a complete list of Congressional Gold Medal recipients since 1776, see the Appendix .

Once a Congressional Gold Medal bill is introduced, it is typically referred to the House Committee on Financial Services or the Senate Committee on Banking, Housing, and Urban Affairs. The process for considering legislation varies between the House and Senate.

In the House, there are currently no chamber or committee rules regarding the procedures for gold medal bills. In some past Congresses, the House Financial Services Committee had adopted a committee rule that prohibited its Domestic Monetary Policy and Technology Subcommittee from holding a hearing on commemorative medal legislation—including Congressional Gold Medals—"unless the legislation is cosponsored by at least two-thirds of the members of the House." Informal practices regarding cosponosrship requirements, however, may still exist.

In the Senate, the Banking, Housing, and Urban Affairs Committee in the 116 th Congress requires that at least 67 Senators cosponsor any Congressional Gold Medal bill before being considered by the committee. This committee rule presumably does not formally preclude committee consideration of a House bill referred to it. The committee rule also does not prevent the Senate from considering or passing gold medal legislation. Referred bills may be brought to the floor without committee consideration; in other cases, a bill may avoid being referred to committee at all. In current practice, many enacted gold medal bills receive no formal committee consideration. Rather, the Senate often discharges the committee of the bill by unanimous consent; however, it appears that this discharge practice only occurs after the requisite number of cosponsors sign on to a Senate bill.

Although Congress has approved legislation stipulating requirements for numerous other awards and decorations, there are no permanent statutory provisions specifically relating to the creation of Congressional Gold Medals. When a Congressional Gold Medal has been deemed appropriate, Congress has, by legislative action, provided for the creation of a medal on an ad hoc basis. Additionally, there is no statutory limit on the number of Congressional Gold Medals that may be struck in a given year.

Sample Congressional Gold Medal Language

Congressional Gold Medal legislation generally has certain features, including

findings that summarize the subject's history and importance; specifications for awarding the medal; instructions, if any, for the medal's design and striking; permission to mint and sell duplicates; and certification that medals are minted pursuant to existing requirements for national medals (5 U.S.C. §5111).

Congressional Gold Medal legislation typically includes a section of findings. These often include historical facts about the people or groups being awarded the medal. For example, the legislation to authorize the Congressional Gold Medal to the World War II members of the "Doolittle Tokyo Raiders" stated the following:

Medal Presentation, Design, and Striking

Congressional Gold Medal legislation typically includes a section that provides details on the presentation, design, and striking of the medal. For example, the legislation to authorize the Congressional Gold Medal to the Foot Soldiers who participated in Bloody Sunday, Turnaround Tuesday, or the final Selma to Montgomery Voting Rights March in March of 1965 stated the following:

Additionally, this section can contain specific instructions to the Smithsonian, when it is the recipient of the physical gold medal, on its display and availability to be loaned to other institutions. For example, the legislation authorizing the American Fighter Aces Congressional Gold Medal stated the following:

Gold medal legislation also generally authorizes the Secretary of the Treasury to strike and sell duplicate medals in bronze. The duplicates are generally sold in two sizes: 1.5 inches and 3 inches. Duplicates are sold at a price which allows the U.S. Mint to cover the cost of striking the gold medal. For example, legislation authorizing the 65 th Infantry Regiment, known as the Borinqueneers, Congressional Gold Medal stated the following:

Gold medal legislation generally contains a statement that these awards are considered as national medals for the purpose of the U.S. Mint's statutory requirements for producing medals. For example, legislation authorizing the Montford Point Marines Congressional Gold Medal stated the following:

Authorization of Appropriations; Proceeds

In some cases, authorizing legislation includes language authorizing appropriations for a Congressional Gold Medal. In these examples, Congress has authorized a specific sum from the United States Mint Public Enterprise Fund to pay for the cost of the medal. In cases where the authorization of appropriations is provided, a provision requiring that proceeds from the sale of duplicates be deposited in the same Fund is generally included. For example, legislation authorizing the Women Airforce Service Pilots Congressional Gold Medal stated the following:

Congressional Gold Medal designs vary for each issuance. In general, the authorizing legislation provides that the Secretary of the Treasury "shall strike a gold medal with suitable emblems, devices, and inscriptions, to be determined by the Secretary." When designing a Congressional Gold Medal, the Secretary consults with the Citizens Coinage Advisory Commission (CCAC) and the U.S. Commission of Fine Arts (CFA) before determining the final design.

Established by P.L. 108-15 , the CCAC advises the Secretary of the Treasury on theme and design of all U.S. coins and medals. For Congressional Gold Medals, the CCAC advises the Secretary "on any theme or design proposals relating to ... Congressional Gold Medals."

The CCAC consists of 11 members appointed by the Secretary of the Treasury, with four persons appointed upon the recommendation of the congressional leadership (one each by the Speaker of the House, the House minority leader, the Senate majority leader, and the Senate minority leader). The CCAC meets several times each year to consider design suggestions for coins and medals. For each coin considered, the CCAC provides advice to the Secretary "on thematic, technical, and design issues related to the production of coins." Recommendations are then published to the committee's website, at http://www.ccac.gov .

In tandem with recommendations received from the CCAC, the U.S. Mint also seeks a recommendation from the U.S. Commission of Fine Arts. Established in 1910, the CFA advises "upon the location of statues, fountains, and monuments in the public squares, streets, and parks in the District of Columbia; the selection of models for statues, fountains, and monuments erected under the authority of the Federal Government; the selection of artists; and questions of art generally when required to do so by the President or a committee of Congress." This includes review of commemorative coins when they are presented by the U.S. Mint and the issuance of recommendations for a coin's design.

For example, in March 2014, the U.S. Mint presented several alternative designs for the First Special Service Force Congressional Gold Medal. In a letter to the U.S. Mint, the CFA provided recommendations on the design for the gold medal. CFA's letter stated the following:

After receiving advice from the CCAC and the CFA, the Secretary of the Treasury, through the U.S. Mint, finalizes the coin's design and schedules it for production. Figure 1 shows the final design of two Congressional Gold Medals: the New Frontier Gold Medal for Neil Armstrong, Michael Collins, Buzz Aldrin, and John Glenn; and the Jack Nicklaus Gold Medal.

As Members of Congress contemplate introducing legislation, and the House or the Senate potentially consider Congressional Gold Medal measures, there are several issues that could be considered. These can be divided into issues for individual Members of Congress with respect to individual Congressional Gold Medals, and issues for Congress as an institution. Individual issues include choices Members may make about which people or groups might be honored and whether specific design elements might be specified statutorily. Institutional issues might include committee or chamber rules on the consideration of Congressional Gold Medals and creating standards for the issuance of gold medals.

Some Congressional Gold Medals have honored individuals (e.g., Arnold Palmer, Muhammad Yunus), some discrete groups of individuals (e.g., General of the Army George Catlett Marshall and Fleet Admiral Ernest Joseph King, Ruth and Billy Graham), and some larger groups (e.g., military units such as Women Airforce Service Pilots ["WASP"], Monuments Men). In choosing whom or what to recognize, Members of Congress generally evaluate whether they believe that the individual's or group's activities merit recognition by Congress. Congressional Gold Medals are "the highest civilian honor award program ... [to] honor national achievement in patriotic, humanitarian, and artistic endeavors." There are no specific criteria to determine whether or not an individual or group meets those lofty goals. Instead, each individual or group is judged on their merits by Congress should the legislation be considered.

Congressional Gold Medal authorizations generally do not specify design elements. Instead, they direct the Secretary of the Treasury to "strike a gold medal with suitable emblems, devices, and inscriptions to be determined by the Secretary." Should Congress want to specify particular design elements, they might be included in the authorizing legislation. This would provide the Secretary of the Treasury with congressional intent on what should be incorporated into the gold medal design. Similar statutory specificity is sometimes included in commemorative coin legislation. Such specification, however, could serve to limit design choices for the gold medal and might alter the cost structure of striking the award, if the required element diverges from standard practices.

Congressional Gold Medal legislation for groups generally provides that only a single gold medal is struck and specifies where it will be located after it is formally awarded. In many cases, the gold medal is given to the Smithsonian for appropriate display and where it can be made available for research. In other cases, the gold medal is provided to an organization that represents the honored group. Since most gold medal legislation contains a provision on the medal's location, a Member of Congress can help determine where the medal will be located.

Requirements for Legislative Considerations

As discussed above under " Authorizing Congressional Gold Medals ," neither the House nor Senate rules provide any restrictions specifically concerning consideration of Congressional Gold Medal legislation on the House or Senate floor. In the 116 th Congress, the Senate Committee on Banking, Housing, and Urban Affairs requires that at least 67 Senators must cosponsor any Senate Congressional Gold Medal bill before being considered by the committee. Currently, the House Financial Services Committee has not adopted any specific rules concerning committee consideration of Congressional Gold Medal legislation, although it has required a minimum number of cosponsors in past Congresses for committee consideration.

As demonstrated by the discontinuation of the House Financial Services Committee rule requiring a minimum number of cosponsors for committee gold medal legislation, committee rules can be changed from Congress to Congress. Should the committee want to place requirements on its consideration of gold medal legislation, the Financial Services Committee could readopt its former rule, or something similar. Adopting committee rules to require a minimum number of cosponsors might encourage bill sponsors to build support among Representatives for gold medal bills. Such a minimum requirement, however, could potentially limit the number or type of gold medal bills the committee considers. Since only the Senate Committee on Banking, Housing, and Urban Affairs has a rule that imposes a formal qualification on the potential committee consideration of gold medal legislation, the possible path forward for a bill can be different within each chamber.

Should the House, the Senate, or both want to adopt similar language for committee or chamber consideration of gold medal legislation, such language could be incorporated into future committee rules, into House and Senate Rules, or into law. Taking steps to formally codify the gold medal consideration process might provide sponsors with a single process for award consideration, which could make it easier for gold medal bills to meet minimum requirements for consideration across both the House and Senate. Such codification could also limit congressional flexibility and might result in fewer proposals or authorizations to comply with new standards.

Currently, there is no statutory limit to the number of Congressional Gold Medals that can be authorized. Should Congress want to place a limit on the number of gold medals awarded, standards could be adopted to provide a maximum number of gold medals authorized in any year or Congress. Congress has previously adopted similar standards for commemorative coins—only two coins may be minted in any given calendar year.

Legislation to place a limit on the number of gold medals authorized has previously been introduced and considered in the House. During the 109 th Congress (2005-2006), H.R. 54 passed the House and would have restricted the Secretary of the Treasury from striking "more than 2 congressional gold medals for presentation ... in any calendar year." Introduced by Representative Michael Castle, the stated purpose of the legislation was to "maintain the prestige of the medal by limiting the number that may be awarded each year," and to "clarify that recipients are individuals and not groups." Passage of the measure, he argued, would "ensure the future integrity and true honor of the award." H.R. 54 did not receive further consideration in the Senate.

While proponents of a limit on the number of gold medals issued might make arguments similar to those made by Representative Castle, opponents believe that Congress should reserve the right to authorize as many gold medals as it deems necessary, without consideration of the number struck in any calendar year. Representative Joseph Crowley in opposing the legislation told his House colleagues, "We are rushing to act on an issue that does not represent a problem." "Who that received this medal in the past," he asked, "was not worthy of it?" Further, Crowley argued that "there are occasions when more than one person is justified to receive the medal for their honorable actions in tandem with others." He continued by emphasizing that had this bill already been law, "Congress would not have been able to issue" a Congressional Gold Medal "to the Little Rock Nine," to "President and Mrs. Reagan," or to "Martin Luther King and Coretta Scott King."

Congressional Gold Medals have long been an important way for Congress to express public gratitude for important historical events and achievements. Congressional Gold Medals, which have been issued since the American Revolution, are "the highest civilian honor award program ... [to] honor national achievement in patriotic, humanitarian, and artistic endeavors." In recent years, the number of gold medals awarded has "soared from four or five per decade for most of its history to an average of almost twenty in the 1980s, 1990s, and 2000s."

Each Congress, legislation to award Congressional Gold Medals is introduced. In the 113 th Congress (2013-2014), 52 bills were introduced, 34 in the House and 18 in the Senate, to award a gold medal. In the 114 th Congress (2015-2016), 52 bills were introduced, 38 in the House and 14 in the Senate. In the 115 th Congress (2017-2018), 55 bills were introduced, 33 in the House and 22 in the Senate.

Based on the number of measures offered in both chambers, some Members of Congress clearly feel it is important to recognize individuals and groups for their patriotic, humanitarian, and artistic achievements. Several considerations appear important when Members decide to introduce gold medal legislation. These include who should be honored, how many medals should be awarded in a given Congress, and whether specific design elements should be prescribed for the medal design. As Congress continues to consider legislation to award future gold medals, these considerations and others will likely be important factors for issuing the award.

Appendix. Summary of Congressional Gold Medals Awarded: 1776-2018