OCTOBER TERM, 1975
Per Curiam
424 U. S.
directed to the President of the Senate," and that the
"President of the Senate shall, in the presence of the
Senate and House of Representatives, open all the certificates and the votes shall then be counted." The
method by which Congress resolved the celebrated disputed Hayes-Tilden election of 1876, reflected in 19 Stat.
227, supports the conclusion that Congress viewed this
Amendment as conferring upon its two Houses the same
sort of power "judicial in character," Barry v. United
States ex rel. Cunningham, supra, at 613, as was conferred upon each House by Art. I, § 5, with respect to
elections of its own members.
We are also told by appellees and amici that Congress
had good reason for not vesting in a Commission composed wholly of Presidential appointees the authority to
administer the Act, since the administration of the Act
would undoubtedly have a bearing on any incumbent
President's campaign for re-election. While one cannot
dispute the basis for this sentiment as a practical matter,
it would seem that those who sought to challenge incumbent Congressmen might have equally good reason to
fear a Commission which was unduly responsive to members of Congress whom they were seeking to unseat.
But such fears, however rational, do not by themselves
warrant a distortion of the Framers' work.
Appellee Commission and amici finally contend, and
the majority of the Court of Appeals agreed with them,
that whatever shortcomings the provisions for the appointment of members of the Commission might have
under Art. II, Congress had ample authority under the
Necessary and Proper Clause of Art. I to effectuate this
result. We do not agree. The proper inquiry when
considering the Necessary and Proper Clause is not the
authority of Congress to create an office or a commission,
which is broad indeed, but rather its authority to pro-
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