Understanding the Constitution's Postal Clause

The United States Postal Service (USPS) is an integral part of daily life in America. It is relied upon for the delivery of mail, including parcels and packages. Additionally, many individuals use the services of USPS for banking purposes, such as obtaining domestic and international postal money orders.

However, few of us learn the unique history behind this centuries-old American institution. For example, our modern USPS replaced the U.S. Post Office Department, a cabinet-level department of the executive branch.

Article I, Section 8, Clause 7 of the United States Constitution gave Congress exclusive power to establish the postal system. It states:

“[The Congress shall have Power . . . ] To establish Post Offices and post Roads;...”

The Framers' understanding of postal services was influenced by their experiences with the British postal system. Terms like posts, post roads, postmaster, and post offices were adopted from it. The practice of using postal authority to collect intelligence on citizens also began with the British, where officials would inspect the public's mail to uncover conspiracies or plans against the government.

Historical Context

The British imported their postal system to Colonial America in 1692, when they appointed a postmaster for the colonies. It was a division of the postal system for the entire British Empire, including Wales, Scotland, and Ireland. In the 17th and 18th centuries, the British established "post roads."  However, the term “post roads” had less to do with actual mail than it did with the posts found along these designated roads.

Posts were different from post offices. During the 18th century, posts were stations where postal workers collected and delivered mail. They also exchanged tired horses and collected tolls. By contrast, post offices or postal facilities often included inns, leased horses, and published newspapers. In fact, Benjamin Franklin, young America's first Postmaster General, built his fortune as a publisher through his pre-Revolution appointment as Philadelphia's postmaster. 

Franklin contributed to the creation of the USPS by serving on a Second Continental Congress committee dedicated to forming an independent national postal system. He was then appointed as the United States Postmaster General by Congress on July 26, 1775. Although the Articles of Confederation included a clause for establishing a federal post office, it took the founding fathers several years to implement it. 

Analysis and Interpretation 

Today, we enjoy a robust postal system because Congress had the enumerated powers to establish post offices and post roads.  Over the past 235 years, the U.S. Supreme Court has helped shape our understanding of the postal clause.

In Searight v. Stokes, the Supreme Court confirmed that Congress was charged with transporting mail based on the Postal Clause. This duty gave Congress the authority to enter into an agreement with the State of Pennsylvania to use and maintain a state road. 

The Court confirmed this right in Kohl v. United States. In Kohl, the federal government passed an Act explicitly giving them the power to purchase land in Cincinnati to accommodate federal buildings. The Court noted Congress's power to establish post offices and other federal buildings, like courthouses. 

Arguably, the postal clause does not give Congress expansive postal powers.  However, over the past 235 years, the Supreme Court has found many powers of Congress are implied by the Postal Clause. These powers, as identified in Ex-Parte Jackson, include, but are not limited to, the following: 

• Receiving, carrying, and delivering the mail

• Furnishing adequate facilities for the secure transportation and delivery of mail

• To raise funds (through imposing postal rates) to furnish adequate facilities

• To protect the contents of the mail

In Ex-Parte Jackson, the Court examined Congress' power to exclude certain items from being mailed through the USPS.  At issue was the Comstock Act, passed in 1873.  The Comstock Act prohibited certain types of mail, including the following, from going through the USPS:

• Obscene, lewd, or lascivious books, pamphlets, pictures, papers, or other publications of indecent character

• Nothing designed to prevent contraception or procure an abortion

• Postcards and envelopes that contained "indecent or scurrilous epithets"

Under the Comstock Act, using the USPS to mail these prohibited items was a misdemeanor. Although the Comstock Act appears to have violated the First Amendment, the Supreme Court reasoned that Congress refused to allow the use of its facilities to contribute to injuring public morals. 

Congress continued with postal censorship into the early 20th century. For example, in 1917, the Postmaster General issued an order excluding second-class mail under the Espionage Act of 1917. The Supreme Court upheld this order in US EX Rel. Milwaukee Social Democratic Pub. Co. v. Burleson.

By the mid-20th century, the Supreme Court changed course. In Lamont v. Postmaster General, it struck down section 305 of the Postal Service Salary Act of 1962. This Act required the Postmaster General to "detain and deliver only upon the addressee's request unsealed foreign" mail containing communist propaganda. 

The Court deemed this Act unconstitutional because it imposed unconstitutional limitations on the addressee's First Amendment rights, specifically the freedom to receive information.

SCOTUS observed that Congress did not have to operate a postal system, but since it does, it is bound to observe constitutional limits. The Court also addressed Congressional attempts to use its postal powers in other areas of the law. 

In 1935, Congress passed the Public Utility Holding Act of 1935, which gave the Securities and Exchange Commission authority to regulate public utility holding companies.  A public utility holding company exercises power over a different company that directly or indirectly controls an operating public utility.

Congress included language in this Act prohibiting companies that did not register with the SEC from using the mail system and interstate commerce. The SEC ultimately sued several public utility holding companies that did not register.  SCOTUS viewed this language as a penalty and noted that Congress may not exceed its postal powers to enforce a requirement outside its power scope.

The Postal Reorganization Act of 1970 dramatically changed our federal postal service. The then-U.S. Post Office Department went from being part of a President's Cabinet to an independent agency. This gave letter carriers and other postal workers the right to engage in collective bargaining. It also did many things that the postal clause did not. For example, it clarified the role and purpose of mail services in American life. It also gave this new, independent agency the authority to set postal rates and salaries for letter carriers.