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Constitutional Law I
University of California, Hastings School of Law
Coles, Matthew A.


The Powers of Congress

Constitutionality of Congress’ Acts:

There are two questions to act when determining this:

Does Congress have the authority under the Constitution to legislate?

Article 1, §8 – the enumerated powers of congress

Collect taxes and spend money for general welfare
Borrow money on the credit of the US
Regulate commerce with foreign nations and among the states
Declare war
Raise and support the army, navy and militia

If so, does the law violate another constitutional provision or doctrine, such as by infringing separation of powers or interfering with individual liberties?

To answer either question, you need to look to the powers given Congress in the Constitution The six most likely are:

The commerce power
The power to spend
The power to tax
The power to enforce the civil war amendments:

The 13th Amendment
The 14th Amendment
The 15th Amendment

The Necessary and Proper Clause (Article 1, §1)

Gives congress the implied power to make all laws which are necessary and proper to carry out enumerated powers.

McCulloch v. Maryland – Congress created the Bank of the United States and opened a branch in Maryland. Maryland passed a law to impose a tax on all out of state banks, including the federal bank.

Rule – Although the Constitution does not specifically give Congress the power to establish a bank, it does delegate the ability to tax and spend, and a bank is a proper and suitable instrument to assist the operations of the government in the collection and disbursement of the revenue.
Because federal laws have supremacy over state laws, Maryland had no power to interfere with the bank’s operation by taxing it.

United States v. Comstock – Congress tried to pass a law that would allow the civil commitment of several sexual offenders AFTER their prison sentence claiming that each of them had engaged in sexually violent conduct as a result from a mental illness that made them sexually dangerous to others.

Rule – In determining whether Congress had the power to enact a particular federal statute, the court looks to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.
The enumerated power Congress had was to enact criminal laws.

This allowed congress to imprison, treat, and to protect the general public from someone who is “sick” in the federal prison upon their release.

Necessary and proper clause test:

The goal of the statute must be legitimate

To show a statute has a legitimate end it is necessary to show some obvious, simple, and direct relationship between the statute and the enumerated power.

**Understand the two different ideas how the states and the federal government should interact**

US gov is a limited gov.
States cannot pass laws that interfere with federal laws (Federal law is the law of the land)
Any question that deals with congressional power is asking you to link it back to some enumerated power.

Congress cannot just pass any law; it must be a law that is rationally linked to the execution of a constitutionally enumerated power.

Can you trace back the statute to an enumerated power (doesn’t have to be direct)?

The Commerce Clause (Article 1, §8)

Four Eras:

The Gibbons Era

Gibbons v. Odgen – Ogden (plf) is holding a monopoly from the state of NY and he sued Gibbons (def) to stop him from operating a steam boat in his area (also NY). Gibbons was given a federal license from Congress to operate his boat. Does Congress have the power to grant a federal license?

Rule – Intrastate commerce CAN be governed by Congress so long as another state was involved.
Why – Commerce was to mean the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.

Navigation was within the scope because the case had to do with a boat traveling from one state to another (specifically in this case, NJ to NY)

The “Laissez-Faire” Era

A philosophy that believed that an economy left alone is best. Basically trying to cabin the power of Congress.
The courts during this period believed that the creation of goods was not commerce.

Narrow definition of commerce – only the actual transaction could be governed, not the manufacturing, production, etc.
Congress could only regulate areas that has a substantial effect on interstate commerce.

There was a shift in the court that held that Congress could only regulate direct effects on commerce and not indirect effects.

The New Deal Era / Modern Era

The basis for most of today’s jurisprudence. It was the result of a switch of mindset from the laissez-faire philosophy.

Congress can regulate:

1. Channels of interstate commerce (i.e. highways, waterways, and air traffic)

2. Instrumentalities of interstate commerce (i.e. cars, trucks, ships, planes, and the people on them)

3. Activities that substantially affect interstate commerce (allows Congress to regulate intrastate activities as well as interstate activities)

“Substantial Effects” Test – The regulated activity is (1) economic in nature AND (2) the regulated activity, when aggregated, has a substantial effect on interstate commerce

Jones & Laughlin Steel: Congress has the power to regulate commerce related activities
US v. Darby: Congress has the power to regulate the instrumentalities, persons, or things that enter the interstate commerce; and prohibiting shipment of the goods interstate and prohibiting the production of those goods is an acceptable way to implement that.
Wickward v. Filburn: Congress’s power under the Commerce Clause includes the power to regulate agriculture (even if not for the purposes of commerce) and can implement it by regulating growth of those goods. Allowed aggregation as a way to show substantial effect.
Heart of Atlanta Motel: Congress has the power to regulate interstate travel and telling motels that they cannot discriminate who they rent to is an acceptable way to do that.
Katzenbach: Congress has the power to regulate goods that move through interstate commerce and telling a restaurant that they cannot discriminate who they give service to is an appropriate way to do that.


Perez v. United States: Def was a loan shark who was convicted under the Consumer Credit Protection Act which prohibited extortionate credit transactions. The def argued that the CCPA was an unconstitutional use of Commerce Clause Power because there was no interstate activity. The issue was that it was purely local activity.

Rule: Even if there is not substantial effect, Congress does not need to make specific findings just so long as Congress has a rational basis as to how it affects interstate commerce. (distinguish from Lopez because this case is “economic” in that money is involved vs. Lopez where it was a purely uneconomic activity)
Analysis: Loan sharking affected the local economy because it’s taking money out of the economy that would be there without loan sharking. Further, the loans provided revenue for interstate organized crime. This was siphoning money that could be going towards legitimate businesses.

United States v. Lopez – Congress tried to establish gun free zones around schools

Rule: Congress can only regulate something that is economic activity
Rationale – This was a criminal statute that had nothing to do with commerce and the argument that possession of guns in schools increased violence and would hinder education and therefore affect the national economy was too much of a stretch (piling on inferences).

United States v. Morrison – The violence against women act was challenged. It gave a federal civil remedy for victims of gender motivated violence

Rule – If Congress is not regulating an economic activity, the court will not allow aggregation of the activity in order to make a showing of substantial effect on interstate commerce.
Rationale – There no actual economic element within the Act. Congress had a lot of evidence to show that it did substantially affect interstate commerce, unlike in Lopez. However, the Court is hesitant to allow this because if the court can aggregate any situation, then it can be shown in almost any situation that the activity attempted to being regulated would affect interstate commerce.

Gonzalez v. Raich – The medical marijuana case where plfs were charged under the federal statute that banned use even though CA allowed it.

Rule – If you have intrastate activity that is neither economic or commercial, the feds can reach it if without being able to do so, they would be unable to enforce a legitimate federal statute that deals with the commerce of the activity.
Rationale – Showed aggregate effect to show how it would substantially affect interstate commerce and they had a rational basis for believing it would affect commerce.