Also known as: whereas clauses · whereas-clause · recitals
Written by attorneys — see sources below.
A preliminary statement in a contract, deed, or similar instrument that explains the background of the transaction or the reasons for entering into it. Traditionally each such statement begins with the word whereas. The clause supplies context but does not itself create operative rights or duties.
Walter Washington drafted a document that opened with whereas clauses reciting his desire to provide for his girlfriend after his death and ended with the words 'this is my last will.' After his death his daughter offered extrinsic evidence that the document had been executed only to persuade the girlfriend to resume their relationship. The court admitted the evidence and held the instrument ineffective as a will.
Wrightway Engineering challenged an embargo proclamation that began with whereas clauses declaring a national emergency in arms shipments. The company argued the clauses showed the President had exceeded statutory authority. The Court treated the clauses as background recitals that did not limit the scope of the delegated power.
An indictment was returned on January 27, 1936. The first count charged that appellees conspired beginning May 29, 1934, to sell fifteen machine guns in the United States to Bolivia, a country then engaged in armed conflict in the Chaco. The sales allegedly violated the Joint Resolution of Congress approved May 28, 1934, and the presidential proclamation issued the same day. The Joint Resolution stated that if the President found the prohibition of arms sales might contribute to peace and if he consulted with other American Republics and secured their cooperation, he could proclaim the prohibition effective. It then became unlawful to sell arms to the countries in the Chaco conflict. President Roosevelt issued the proclamation on May 28, 1934. He declared that he had made the required findings and that the prohibition applied to Bolivia and Paraguay. On November 14, 1935, the President revoked the proclamation. The revocation stated that the prohibition was no longer necessary but expressly preserved all penalties, forfeitures, and liabilities already incurred. Appellees demurred to the indictment. They argued that the joint resolution effected an invalid delegation of legislative power, that the President had failed to find essential jurisdictional facts, and that the revocation ended any liability. The district court sustained the demurrers on the delegation ground but overruled them on the other two grounds. The government appealed directly to the Supreme Court under the Criminal Appeals Act.
View caseWesley Wells refused to salute the flag under a school board resolution whose whereas clauses recited the need to foster national unity. He claimed the recitals revealed an unconstitutional purpose. The Court examined the clauses only to confirm they expressed a legitimate educational objective and did not compel speech.
Following the Supreme Court's 1940 decision in Minersville School District v. Gobitis, the West Virginia legislature amended its statutes to require all schools in the state to conduct courses of instruction in history, civics, and the Constitutions of the United States and West Virginia for the purpose of teaching, fostering, and perpetuating the ideals, principles, and spirit of Americanism. The State Board of Education was directed to prescribe the courses of study covering these subjects for public schools. Private, parochial, and denominational schools were required to prescribe similar courses. On January 9, 1942, the West Virginia State Board of Education adopted a resolution ordering that the salute to the flag become a regular part of the program of activities in the public schools, with all teachers and pupils required to participate. The resolution specified the stiff-arm salute with the right hand raised and palm turned up while repeating the pledge: "I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all." Refusal to salute was defined as an act of insubordination to be dealt with by expulsion. Readmission was denied by statute until compliance. The expelled child was treated as unlawfully absent. Parents or guardians faced prosecution with fines not exceeding $50 and jail terms not exceeding thirty days. The appellees are citizens of the United States and West Virginia who are Jehovah's Witnesses, an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which prohibits making or bowing down to any graven image or likeness. They consider the flag an image within this command, leading them to refuse to salute it on religious grounds. Children of the appellees who were pupils in the public schools were expelled for their refusal to salute the flag and take the pledge of allegiance. Their parents were prosecuted for causing delinquency. Officials threatened to send the children to reformatories maintained for criminally inclined juveniles. The appellees brought suit in the United States District Court for themselves and others similarly situated to enjoin enforcement of the laws and regulations against them. The Board of Education moved to dismiss the complaint setting forth these facts. The complaint alleged that the law and regulations denied religious freedom and freedom of speech and were invalid under the due process and equal protection clauses of the Fourteenth Amendment. The cause was submitted on the pleadings to a District Court of three judges, which restrained enforcement as to the plaintiffs and those of that class. The Board of Education brought the case to the Supreme Court by direct appeal.
View caseWendy Wu challenged the individual mandate whose statutory whereas clauses recited the need to regulate interstate insurance markets. She argued the recitals revealed an attempt to exceed commerce power. The Court reviewed the clauses as legislative findings but held they could not create authority the Constitution withholds.
In 2010 Congress enacted the Patient Protection and Affordable Care Act containing hundreds of provisions across ten titles. The Act requires most Americans to maintain minimum essential health insurance coverage beginning in 2014 or else make a shared responsibility payment calculated as a percentage of household income subject to a floor and ceiling. The Act also expands Medicaid by requiring participating states to cover adults with incomes up to 133 percent of the federal poverty level while increasing federal funding but threatening loss of all Medicaid funds for noncompliance. On the day the President signed the Act Florida and twelve other states filed suit in the United States District Court for the Northern District of Florida challenging the individual mandate provisions under Article I. The original plaintiffs were later joined by eighteen additional states several individuals and the National Federation of Independent Business. The District Court held that the individual mandate exceeded congressional power and could not be severed from the remainder of the Act so it struck down the entire statute. The Court of Appeals for the Eleventh Circuit affirmed that the individual mandate exceeded congressional power but held the provision severable from the rest of the Act while unanimously upholding the Medicaid expansion. Other courts of appeals reached conflicting results on the mandate with the Sixth Circuit and the D.C. Circuit upholding it under the commerce power and the Fourth Circuit applying the Anti-Injunction Act to bar review. The Supreme Court granted certiorari to review the Eleventh Circuit judgment on both the individual mandate and the Medicaid expansion and appointed amici curiae to address severability and the Anti-Injunction Act. The penalty for noncompliance with the individual mandate first becomes enforceable in 2014. The present suit seeks to restrain its future collection. The Act describes the payment as a penalty rather than a tax. It directs that the payment be assessed and collected in the same manner as taxes but bars the IRS from using criminal prosecutions or levies to enforce it.
View caseWolverine Steel attacked cable must-carry rules whose whereas clauses recited threats to broadcast viability. The company contended the recitals overstated the harm. The Court treated the clauses as congressional findings entitled to deference yet still required evidence that the rules were narrowly tailored.
In the late 1940s cable systems were first built to bring clear broadcast television signals to remote or mountainous communities. Modern systems with capacity for dozens or hundreds of channels came to compete directly with over-the-air broadcasters as an independent source of programming. Cable operators own the physical transmission facilities and select programming from outside sources including local and distant broadcast stations as well as national networks such as CNN, MTV, and ESPN. They charge subscribers monthly fees. Broadcasters transmit signals over the air at no charge to viewers and rely on advertising revenue. On October 5, 1992, Congress overrode a presidential veto to enact the Cable Television Consumer Protection and Competition Act of 1992. Sections 4 and 5 impose must-carry obligations on cable systems. Section 4 requires systems with more than twelve active channels and more than three hundred subscribers to set aside up to one-third of their channels for local commercial broadcast stations requesting carriage. Systems with twelve or fewer channels must carry three such stations. Section 5 imposes parallel requirements for local noncommercial educational stations. It mandates carriage of one to all requesting stations depending on system size. Carriage must be continuous, on the same channel position, and without charge to the broadcaster. Congress enacted the 1992 Cable Act after three years of hearings and recited its conclusions in the statute itself. It found that more than 60 percent of television households subscribe to cable. Cable operators enjoy monopoly power because of local franchising requirements and the expense of building competing systems. Vertical integration and horizontal concentration give operators both the incentive and ability to drop or reposition local broadcast signals in favor of affiliated programmers. This threatens the economic viability of free local broadcast television. Soon after the Act became law, numerous cable programmers and cable operators filed five consolidated actions in the United States District Court for the District of Columbia against the United States and the Federal Communications Commission. They challenged the must-carry provisions as violations of the First Amendment. A three-judge district court granted summary judgment in favor of the government and intervenor-defendants. The court ruled that the provisions are content-neutral economic regulation that survives intermediate scrutiny. Judge Williams dissented. The Supreme Court noted probable jurisdiction on direct appeal.
View caseWalker Valley Produce challenged an oil code whose whereas clauses recited an emergency in petroleum production. The company argued the recitals could not supply the missing statutory standard. The Court held the clauses could not cure an impermissible delegation of legislative power.
In June 1933 Congress enacted the National Industrial Recovery Act. Section 9(c) of Title I authorized the President to prohibit the transportation in interstate and foreign commerce of petroleum and its products. This prohibition applied when the petroleum was produced or withdrawn from storage in excess of amounts permitted by any state law or valid regulation. On July 11, 1933, the President issued an Executive Order prohibiting such transportation of excess petroleum. On July 14, 1933, he issued a further order authorizing the Secretary of the Interior to enforce the prohibition by designating agents, setting up boards, and promulgating rules and regulations. The Secretary of the Interior issued regulations on July 15, 1933, later amended on July 25 and August 21, 1933. These regulations required every producer, purchaser, shipper, and refiner of petroleum to file monthly sworn statements detailing residence, production locations, allowable and actual production, deliveries, and storage, and to maintain adequate books and records available for inspection. Panama Refining Company, a Delaware corporation engaged in refining crude oil and shipping it in interstate commerce, together with its Texas subsidiary and Amazon Petroleum Corporation along with other Texas oil producers, filed suits in federal district court in Texas against federal officials including the Administrator and Attorney General. The complaints alleged that the regulations restricted their interstate shipments of oil produced in compliance with Texas law. The District Court granted permanent injunctions against enforcement of the federal regulations and orders. The Circuit Court of Appeals reversed the decrees and directed that the bills be dismissed. The Supreme Court granted certiorari on October 8, 1934.
View caseNo. The clause supplies background or context for the transaction. Operative duties arise only from the granting or operative clauses that follow it.
Yes. A recital such as 'this is my last will' creates only a rebuttable presumption of testamentary intent. Evidence that the document served a collateral purpose may defeat that presumption.
Supporting sources
Courts treat them as legislative findings or statements of purpose. They may illuminate intent but cannot expand or contract the authority granted by the operative text.
No. Modern drafting often omits the formal whereas introduction. The underlying recital function remains useful for stating background facts that aid interpretation.
…to those required for the public schools." The Board of Education on January 9, 1942, adopted a resolution containing recitals taken largely from the Court's Gobitis opinion and ordering that the salute to the flag become "a regular part of the program of activities in the public schools," that all teachers and…