Cooley v. Board of Wardens

The 6-2 decision allowing authority over commerce to be split between federal and state governments was easy to declare but has proven difficult to apply. Local and state laws under the precedent set by Cooley have, however, been consistently upheld in the absence of any action by Congress to provide more specific guidance.

The decision in Cooley v. Board of Wardens concerned the running battle among the justices during the first 50 years of the Supreme Court over the proper roles of the federal and state governments. Delivering an opinion that allowed states to exercise power over commerce, Justice Curtis took some pleasure from the offense that the decision gave the Federalist Party. The Federalists favored national power over state power and were therefore concerned about the decision. Curtis wrote a friend before the decision was announced:

[I]t is adverse to the exclusive authority of Congress and not in accordance with the opinions of [Justices] McLean and Wayne, who are the most high-toned Federalists on the bench. But it rests on grounds perfectly satisfactory to myself, and it has received the assent of five judges [Justice McKinley abstained] out of eight.

The case arose out of an 1803 Pennsylvania law requiring masters of ships who refused the services of pilots to nevertheless pay half the regular pilot fee. The money was allocated for "the relief of distressed and decayed pilots, their widows and children." Aaron Cooley, who sued the port's Board of Wardens for the return of fees he had been forced to pay, believed that the fees had been unconstitutionally levied.

Somewhat similar Massachusetts and New York taxes for the relief of destitute immigrants had been declared unconstitutional by a 5-4 vote in the earlier Passenger Cases decision. The Philadelphia pilot fee, however, was levied on the operations of ships in the Philadelphia harbor, not imposed on passengers or commodities like the Massachusetts and New York taxes. Moreover, counsel for the pilots could also point to specific congressional authorization in a 1789 act which stated that pilots "shall continue to be regulated in conformity to the existing laws of states . . . until further provision shall be made be Congress."

Consequently, Curtis reasoned, the mere fact that Congress had the power to make such "further provision" did not "imply a prohibition on the States to exercise the same power." Judge McLean, writing for himself and Judge Wayne, thought such a state law had to be affirmed by Congress to be valid. According to Chief Justice William H. Rehnquist in The Supreme Court: How It Was, How It Is, Justice Daniel was "one hundred and eighty degrees on the other side of the question . . . He thought such a state law was valid whether Congress approved it or disapproved it." Daniel, in fact, concurred with Curtis on the question; he differed only on the reasoning.

Chief Justice Taney, a states' rights advocate, was "elated at the victory," according to the constitutional scholar, Alexander M. Bickel of Yale, primarily because of the defeat of McLean and Wayne.

Curtis would himself quietly split with Taney after the Chief Justice handed down his most famous--or infamous--decision, Scott v. Sandford (1857), upholding the Fugitive Slave Act. The ostensible reason given by Curtis, a Massachusetts resident, was that the salary paid to justices was too low. Jere S. Williams, however, reported in The Supreme Court Speaks:

[I]t is now known he left because he felt the Dred Scott decision descended to a purely political level and that the Court had thereby become so debased it could no longer play its rightful role as an independent, co-ordinate branch of the federal government.