Postal Power

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POSTAL POWER

Seven words of Article I, section 8, of the Constitution grant the postal power to Congress. Under the power "To Establish Post Offices and Post Roads" liberally construed, Congress has built offices and constructed roads for handling the mails and maintained an extensive nationwide delivery service. Congress has vested in the Postal Service, now in corporate form, monopoly powers over the delivery of letters and extensive, though often untested, police powers over the mails.

The postal system in the United States traces its roots to a 1692 crown patent to Thomas Neale by William and Mary, granting a monopoly of the colonial posts, including all profits therefrom. The Post Office was established on July 26, 1775, by the continental congress to assure effective communications and to eliminate what was viewed as a tax by the British Post Office. The articles of confederation granted exclusive postal power to Congress, and the Constitution carried forward the congressional power over the mails.

At the time of the constitutional convention the activities of the Post Office were widely accepted, and there was little sentiment for change or elaboration. Indeed, the postal power was virtually undebated, and only one reference to it is to be found in the federalist. The breadth of the congressional interpretation of the postal power, therefore, finds neither support nor contradiction in the Constitution or the debates concerning its adoption.

The postal monopoly, contained in the so-called private express statutes, generally makes it unlawful for private carriers to carry letters and packets, unless postage has been paid thereon and canceled. This provision is, in effect, a 100 percent tax on the carrying of letters outside the Postal Service. The monopoly dates from colonial days, and it was and is justified on the economic grounds that it is necessary to retain monopoly power over profitable routes and services so that the Postal Service can provide uniform and inexpensive service nationwide, even along uneconomic and remote routes. The Articles of Confederation specifically granted the monopoly, giving the Congress "sole and exclusive power." The absence of these words in Article I, section 8, leaves the constitutionality of the monopoly unclear, but the few courts that have considered the question have held in its favor. Historically, monopoly had been an integral feature of the British and colonial postal systems, as well as those of many other Western nations.

The extent of the postal power has been the subject of debate in the Congress and of occasional litigation. The earliest questions concerned post roads: did Congress have authority to construct new roads, or only to designate existing state roads as postal routes? The issue had not been discussed by the Framers or, with one exception (New York), at the state conventions. Congress determined that it had power to appropriate funds to construct post roads, but not to construct them directly. The Supreme Court had never decided the question, although Chief Justice john marshall in obiter dictum in mcculloch v. maryland (1819) suggested that the power included construction. In the construction of the first of these roads, the Cumberland Road, Congress and the President adopted a working compromise by seeking the consent of the affected states prior to approval of the bill. Many other post roads were constructed following similar procedures. The Supreme Court ultimately put the question of construction authority to rest in Kohl v. United States (1876) by holding that the federal government may condemn land, by analogy to eminent domain, for a post office site.

Postal statutes and regulations grant police powers to the Postal Service, imposing rules designed to protect the public welfare and limiting mailability. Safety regulations (for example, mailability of poisons and explosives) and mechanical rules (size and packaging standard), have not been the subject of serious challenge. The statute imposing fines and imprisonment for mail fraud was held constitutional in Public Clearing House v. Coyne (1904) and several later cases. Other statutory determinations of nonmailability have similarly been upheld. Ex parte Jackson (1878) upheld a criminal conviction under a federal statute prohibiting mailing of newspapers containing advertisements for lotteries. In the late eighteenth and early nineteenth centuries, relying on Jackson and other holdings, Congress greatly expanded the exclusionary power to cover libelous matter, obscenity, and the like, and these provisions remain a part of present law. The Supreme Court has repeatedly upheld the constitutionality of the congressional power to exclude obscene materials from the mails.

From 1872 until 1970, the Post Office was an executive department and the postmaster general had cabinet status. Prompted by heavy economic losses from Post Office operations, problems with postal deliveries, and charges of political inefficiency, Congress in 1970 created the United States Postal Service to take over the functions of the Post Office Department. Removing the operations of the Post Office (including appointment of the postmaster general) from direct political influence and granting to the Post Office a substantial degree of fiscal autonomy were among the major objects of the reorganization. The new Postal System is organized as a public corporation, owned entirely by the federal government, under the management of a board of governors. The board appoints the postmaster general, who is the chief executive officer of the Postal Service, but is no longer a cabinet member. The board and the officers have wide discretion with respect to management, services, and expenditures, subject to congressional oversight. Postal rates, formerly established directly by Congress, are now determined by a presidentially appointed Postal Rate Commission on the basis of recommendations made by the board of governors.

Stanley Siegel
(1986)