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August 4, 194-8


Board of Governors



Mr. Vest

Constitutional power of
Congress as to reserves
of nonmember banks.

When Chairman McCabe was testifying before the House Banking and
Currency Committee on August 2, 1948, he was requested to have a
memorandum prepared on the constitutional power of Congress to make
reserve requirements applicable to nonmember banks*

Ve have prepared

such a memorandum and I have submitted a copy to the House Banking
and Currency Conmittee.

A copy i s attached for the Board1 s informa-



As a measure to aid in protecting interstate commerce and the
nation1s monetary, banking and financial structure against the dangers
arising from further inflationary pressures, i t has been proposed that
Congress enact legislation requiring a l l commercial banks to maintain
certain reserves in the form of balances with Federal Reserve Banks.
This proposal encompasses banks which are not members*as well as those
which are members of the Federal Reserve System because, as has been
pointed out, the proposal would be both ineffective and unfair i f the reserve requirements in question were made applicable only to those banks
that happen to be members of the Federal Reserve System.
A question has been raised as to the authority of Congress
to enact such legislation requiring nonmember banks to comply
with such reserve requirements, and the purpose of this memorandum is to
show in brief compass the clear authority which Congress has in the matter.
Previous Legislation Applicable to Nonmember Banks
Before discussing the legal considerations and the decisions
of the Federal courts which clearly sustain this authority on the part
of Congress, i t should be pointed out that Congress has heretofore enacted
legislation which subjects bonks to certain requirements regardless of
whether or not they are members of the Federal Reserve System.
In the Banking Act of 1933> Congress included a provision

-2(section 21 of that Act) which provides that i t shall be unlawful for
any person engaged in underwriting securities to engage at the same time in
receiving deposits.

In other words, banks were required by that Act to

give up any underwriting business in which they were then engaged.


provision applied to a l l persons engaged in the banking business, regardless of whether or not members of the Federal Reserve System.


in 1934-, in the Securities Exchange Act of that year, Congress authorized
the Board of Governors of the Federal Reserve System to issue regulations
prescribing the amount of credit which could be extended for the purpose
of purchasing or carrying registered stocks, and the Board, pursuant
to that authority, has for years had in effect a regulation which applies
to a l l banks, whether or not members of the Federal Reserve System.


over, i t goes without saying that Congress could, as a condition of insurance of deposits of banks by the Federal Deposit Insurance Corporation,
make any reserve or other requirements of such banks which i t deemed

But as w i l l be demonstrated below, the decisions make clear

the power of Congress to enact the proposed legislation regardless of
whether the banks affected by i t are insured by the FDIC or are members of
the Federal Reserve System.
The f i r s t part of the discussion which follows relates to the
power of Congress to take the proposed action under its authority over
interstate commerce, and this power alone is f u l l y sufficient to authorize
the proposed legislation.

In addition, however, there is discussed the

authority of Congress to take this action in order to protect the banking
system which Congress has established and in order to protect the nation1s
monetary system*

A l l these grounds arc related, but i t is convenient to consider

-3them separately.
Authority of Congress
Power over Interstate Commerce. - The power of Congress to
enact the legislation in question is sustained by the plenary authority
granted to Congress by Section 8 of Article I of the Constitution, "To
regulate Commerce with foreign Nations, and among the several States,
* * * l f , and tfTo make a l l Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers * * *. tf
p. XXXIX, 1946 Ed.)

(U. S. Code*

That banking—whether chartered by the Federal

or State governments—is an activity within the reach of this Congressional authority has been decided specifically by court decisions under
both the National Labor Relations Act and the Fair Labor Standards Act
which, of course, were enacted in pursuance of the "commerce power".
In National Labor Relations Board v. Bank of America National
Trust & Savings Association. 130 F(2d) 624 (C.C.A. 9th, 1942), a petition
for enforcement of a Board order based on violations of the National Labor
Relations Act, the Bank contended in defense that i t was not "engaged in
commerce" and that its operations did not "affect commerce" within the
meaning and intendment of that Act.
In sustaining the order and, therefore, overruling the Bank's
contentions, the Court reviewed the Bank's activities, including, among
others, the financing of business operations, both interstate and intrastate in character; the collection of commercial paper, much of which




covered interstate shipments of goodsj the interstate transfers of
funds? and the facilitation of the sale and shipment of goods in the
channels of commerce through the discounting of trade acceptances, the
issuance of letters of credit, bank drafts, etc*

The Court said that

the Bank!s operations had an "undeniable effect * * * upon commerce among
tho States,11 lending "vital support to the commercial l i f e of the nation*11
Furthermore, the Court said that the Bank was "itself directly and every
hour of tho business day engaged in interstate activities not describablo
otherwise than as commcrco * * * *within tho meaning of the Constitution*."
Tho United States Supremo Court doniod certiorari and rehearing (318 U.S,
791-792? 319 U,S. 782)..
A similar caso is that of Bozant v. ftank of N w York* 156
F(2d) 787 (C.C*A* 2d, 1946), which hold that tho Bank was subject to the
Fair Labor Standards Act becauso of tho relationship of tho Bank's activities to interstate commorco.

Tho cipso relationship of credit activities

to interstate commorco is further illustrated by United States v#
General Motors Corporation* 121 F(2d) 376 (C.C*A* 7th, 1941), cert,
and rohoaring den. 314 U. S* 579, 618, 710, holding that tho local
r e t a i l and wholesale financing of products moving in interstate commorco
is a matter within tho power of Congress undor tho "commorco power" as
expressed in the Federal anti-trust laws.

- 5 The above decisions demonstrate f u l l y the application to
banking of the principle, established by the courts in dealing with
other but analogous situations, that the regulation of commerce may
extend properly to the regulation of a l l aspects of commerce and of a l l
instrumentalities upon which the carrying on of commerce depends.


general principle was reiterated in United States v. Darby. 312 U.S. 100,
11S (1940) > wherein the Court, in holding a local manufacturer subject
to the Fair Labor Standards Act, said that f,Tho powor of Congress over
interstate commerce * * * extends to those activities intrastate which
so affocts interstate commorco or the oxorcise of the power of Congress
ovor i t as to make rogulation of thorn appropriate moans to the attainment
of a legitimate end, tho oxorciso of the granted power of Congress to
regulate interstate commerce.11

For earlier examples, i t has long since

boon settled that stockyards, although engaged in dealing locally in
livestock, arc subject to Federal control, because they arc essential
cogs in tho machinery of interstate commorce.
25S U.S. 4-95 (1922).

Stafford v. Wallace»

The same is time of a local grain exchange.

Board of Trade of City of Chicago v. Olson. 262 U.Sf 1 (1923) •


issuance of fraudulent b i l l s of lading i s punishable undor Federal
statute, although they covor no interstate shipment.

250 U. S. 199 (1919)•

United States v.

Indeed, the Supreme Court has frequently

rejected arguments which, by the application of "artificial 1 1 or "mechanical"
concepts, would disregard the "economic continuity" of either individual
or collective processes or activity and, hence, ignoring actuality, seek
to limit or impair the Constitutional powor of Congress over interstate

- 6 commerce.

Mandevllle Island Farms. Inc.

68 S# Ct. 996 (1948) •

v. American Crystal Sugar Co..

Seo also United States v. Sullivan. 68 S. Ct. 331

While no useful purpose would bo served by referring to the
many court decisions cumulative of the foregoing, no discussion of tho
"commerce power11 would be complete without mention of United States v.
South-Eastern Underwriters Association. 322 U.S. 533 (1944), holding that
the business of insurance, notwithstanding local regulation, constitutes
commerco and, hence, is subject to tho Federal anti-trust laws.

Sec also

Pair v. Mutual Life Insurance Co. of N w York. 17 L.W. 2035 (CfC.A#, 2d,
July 8, 1948), holding that "insurance policies are goods produced for
commerce11 within the coverage of the Fair Labor Standards Act; and
Smolowe v. Delendo Corporation. 136 F (2d) 231 (C.C.A., 2d, 1943),
cert den. 320 U.S. 751, holding that, as "private sales11 on national
security exchanges affect stock quotations thereon, such sales are not
purely intrastate activities, but are subject to Congressional regulation
as interstate commerce under the Securities Exchange Act of 1934*
In conclusion on this point may be noted Wickard v. Filburn.
317 U.S. I l l (1942), in which the Court sustained as validly within the
"commerce power" of Congress, tho whoat marketing quota and attendant
penalty provisions of the Agricultural Adjustment Act of 1938, as amended,
although the facts boforo tho Court involved whoat not intended in any
part for commerce but wholly for consumption on the farm where grown.
In so holding, the Court observed that tho general schemo of the
Act was "to control the volume" of whoat ^moving in interstate and foreign
commerco in order to avoid surpluses and shortages and the consequent

~ 7~
abnormally low or high,wheat pricos and obstructions to commorcc*"


overruling tho argument that the Act was unconstitutional as an interference
with local matters,

"production" and "consumption11, which, at most,

would have only an w indirect" offeet on interstate commerce, tho Court
"But even i f appelleets activity be local and though i t may not
be regarded as commerce., i t m y s t i l l , whatever its nature, be
reached by Congress i f i t exerts a substantial economic effect
on interstate commorco, and this irrospoctivo of whether such
offoct is what might at samo earlier timo have boon defined as
1 direct 1 or ^ d i r e c t * * *
That appellee^ own contribution
to tho demand for wheat may bo t r i v i a l by itself is not enough
to romovo him from tho scope of federal regulation whore, as
horo, his contribution, taken together with that of many others
similarly situated, is far from t r i v i a l * *
* * * Congress
nay properly havo considered that wheat consumed on tho farm whore
grown, i f wholly outside tho schomo of regulation, would havo a
substantial effcct in defeating and obstructing its purpose to
stinulato trado therein * * *."
Tho Wickard caso is particularly apposite to tho question

I f i t is constitutional to rogtflato as intorstato commorco

wheat grown locally and in a "trivial 11 amount for homo consumption,
as hold in tho .Wickard caso, so also is local banking subject to such
regulation ovon though, in a given caso, i t might bo considered to bo
of equally "trivial" proportions in intorstato commorco.

Horo, as

in tho legislation involved thoro, Congress may properly considor that
any such banking, no loss than local farming, i f l o f t outsido tho
schomo of regulation, "would have a substantial offoct in defeating
and obstructing" its lawful purpose and, thoroforo, apply its rcgu^
lation to a l l banks, largo and small aliko, and whothor nonnembors
or members of tho Federal Rcscrvo System#

-8Protection of the Banking and Monetary Systems. - Although,
as indicated above, the "commerce power" is ample authorization for the
proposed legislation, the Congress also has authority for such action under
its power to protect the banking system and the nation1 s monetary system.
The authority of Congress to protect the national banking
system and the Federal Reserve System has been reaffirmed many times since
the famous case of McCullech v. Maryland, U Wheat (U.S.) 316 (1819), which
held that a bank chartered ty Congress could not be taxed fcy a State because
such taxation would interfere with the power of Congress.

In that case,

Chief Justice Marshall stated (p. 426) the basic doctrine that



to create implies a power to preserve11.
The authority of Congress to authorize national banks to act in
certain circumstances as trustees, executors and administrators, as against
the contention thet

such action infringed State authority, was sustained

in First National Bank v. Union Trust Co.. 244 U. S. 416 (1917), on the
ground thet Congress could lawfully authorize national banks to act in
such capacities in order to enable them tc compete with State corporations
having such power.

And, in State of Missouri v. Duncan. 265 U.S. 17 (1924),

the Court held, in effect, that, although the local law did not authorize
national banks to act as executors, a State probate court could not discriminate against national banks by refusing to appoint them executors and thereby deprive such banks of "their power to compete that Congress is authorized
to sustain."
The banks to which Congress can lawfully extend protection, however,
need not be Federally chartered.

Thus, in Westfall v. United States. 274.

-9U. S. 256 (1927), a defendant was indicted for aiding and procuring a branch
manager of a member bank of the Federal Reserve System to misapply bank
funds in violation of Federal statute.

The application of the statute to

the defendant, although not e bank official, was sustained on the ground
that i t was proper to prevent the weakening of the System.

The authority

of Congress similarly to protect nonmember banks whose deposits are insured
ty the Federal Deposit Insurance Corporation also has been upheld.


United States. 94 F* (2d) 495 (C.C.A., 8th, 1938) and Weir v. United

States, 92 F. (2d) 634 (C.C.A., 7th, 1937), cert. den. 302 U. S. 761.
The authority of Congress to protect the nation1s monetary
system was long ago held to authorize measures far more sweeping than the
legislative proposal in question.

Veazie Bank v. Fenno, 8 Wall (U.S.)

533 (1869), sustained a 10 per cent Federal tax imposed on the circulating
notes of State banks.

Although clearly recognizing that the tax was

intended to, and did, bring to an end the practice of State banks of
issuing such notes, the Court stated the monetary authority for such action
as follows;
"Having undertaken to provide a currency for the whole
country, i t can not be questioned that Congress may, constitutionally, secure the benefit of i t to the people by appropriate legislation. To this end, * * * Congress may restrain,
by suitable enactments, the circulation as money of any notes
net issued under its own authority."
I t w i l l be noted that the statute sustained by the court
in the Veazie ftank case singled out State banks and applied the burden

-10of the control exclusively to them.

That statute, by comparison,

illustrates the far milder effect which the present proposal would have
on State banks.

Instead of laying special burdens on State banks as

was done in the Veazie Bank case, the present proposal would merely have
a l l banks, member and nonmember alike, conform to the requirements
which would be ineffective and unfair i f applied only to members of the
Federal Reserve System., and which are necessary for aid in the protection
of interstate commerce and the banking and monetary systems established
by Congress.
The Congressional powers to protect the banking and monetary
systems are, of course * clearly related.

They stem not only from

several specific provisions of the Constitution but from a blending
thereof and from its general purposes.
Norman v. B. & 0. R.R. Co. 294 U* S. 240 (1935) is one of many
cases illustrating the broad sweep of those powers.

There the Court

sustained the power of Congress to strike down tfgold clausesw not only
in contracts made by individuals . but also in contracts of States and
their subdivisions.

The Court not only quoted with approval from the

Veazie Bank case> above} but clearly stated and reaffirmed the comprehensive character of such powers:
"The Constitution fronts to the Congress power
coin money* regulate the value thereof> and of
foreign coin. 1 Art. I , sec. 8, par. 5* But the
Court in the legal tender cases [12 Wall. 457] did

-11not derive from that express grant alone the f u l l authoritj'
of the Congress in relation to the currency. The Court
found the source of that authority in a l l the related powers
conferred upon the Congress and appropriated to achieve 'the
great objects for which the government wns framed,1 — f a
national government5 with sovereign powers.1 McCulloch v»
Maryland, 4 Wheat. 316, 404-407; Knox v. Leof supra, pp. 532,
536j Juilllard v. Greoaan, supra, p. 438* The broad and
comprehensive national authority over the subjects of revenue,
finance and currency is derived from the aggregate of the
powers granted to the Congress, embracing the powers to lay
and collect taxes, to borrow money, to regulate commerce with
foreign nations and among the several States, to coin money,
regulate the value thereof* and of foreign coin, and fix the
standards of weights and measures, and the added express
power ! to make a l l laws which shall be necessary and proper
for carrying into execution1 the other enumerated powers."
Clearly the legislative proposal in question, which would
operate prospectively and which would be merely regulatory rather than
prohibitory* is nothing like as drastic as the Congressional action
sustained by the court in theflormatiand Veazie Bank cases.


i f tho Congressional power can be lawfully used as demonstrated by th^se
cases to adjust matters of v i t a l national interest;, thero can be no room
for doubt as to the validity of tho Congressional action now proposed.

Submitted by George B. Vestf General Counsel*
Board of Governors of the Federal Reservo System.

August 4> 1948.