Ringhandt
ConLaw
Spring 2013
Unit 1: Sources and Scope of Congressional Power
Congress’ implied power through the N&P Clause—the N&P Clause guarantees a latitude of discretion in the exercise of all granted powers under Art. 1 s8 and other parts of the Constitution and ensures that the particularized grants of authority can be exercised completely and effectively.
McCulloch: Congress establishes National band and MD wants to tax it.
McCulloch was the 1st case to recognize the doctrine of implied powers through the
N&P Clause of Art. 1 S8
Implied Powers: thought the Federal government may act only where
affirmatively authorized by the Constitution, the authorization does NOT have to be explicit.
Congress may exercise powers ancillary to one of its explicit grants of
power so long as the ancillary power does not conflict with Constitutional prohibitions (e.g. those in the BoR)
N&P source of implied powers: Congress may “make all laws which shall be N&P
for carrying into execution” the specific powers granted in Art. 1 or by other Constitutional provisions.
State of MD imposed a tax on all banks operating within the state but not chartered by
the state. Intended as an anti-National Bank law.
State Argument #1: State Sovereignty: MD can do what it wants within its own
borders.
Response: Arguments for Congressional Power
Powers of Congress come from the States, not from the people
(i.e. States cannot take that power back and decide what the law is)
States were an intermediary btw people and government in the Constitutional ratification
Congress’ powers will be interpreted broadly, not narrowly, according to State’s views
State Argument #2: Congress had no power to create a Bank under Art. 1 s8
Response: Text can infer from other powers the power to create a bank
Spending/Taxing, Raise and Support Armies, Commerce
Such powers imply the means/ability to carry them out
Limitations on Congress in Art. 1 s9 include nothing
about inability to create a bank
State Argument #3: N&P clause covers only that which is truly necessary
through the most direct and simple means
Response: N&P Clause is a grant of power, not a restraint. Based on
where the clause is located (among other grants of powers, not limitations) the clause was not a limit on the means that Congress may take to effectuate their goals.
Necessary did not mean absolutely necessary; rather, it means
to employ “any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable”
Test: valid exercise of N&P power as long as:
Ends are legitmate and within scope of Constitution
Means are appropriate and plainly adapted to that end
Means are not prohibited and are consistent with
letter and spirit of Constitution (since the letter and spirit of the document intended to create a limited government this interpretation did not give Congress unlimited power.
Court’s Reasoning:
Supremacy Clause: Congress is supreme in its sphere and trumps State
regulations
Power to create a bank= power to preserve it
States may not be given power to tax that destroys a legitimate
Congressional goal
National fairness in hands of Congress. MD cannot just decide how to regulate a
national bank. Affects all states.
Slippery Slope- if States can tax a national bank, could next tax other federal functions?
The Commerce Clause Power
Art. 1 s3 provides that “Congress shall have power to regulate commerce with foreign
nations, and among the several states and with the Indian tribes”
Analysis of the Clause
“Commerce” embraces any activity involved in the commercial
exchange of goods and services including the marketing purchase and transportation of those goods.
“Among the several states” includes those commercial exchanges that involve activity occurring in more than one state
“Regulate” means the power to prescribe the rules under which that commerce shall be transacted including the power to prohibit particular transactions
Congress has recognized 3 broad categories of activity that fall under its CC
power
1. Congress may regulate the use of channels of interstate commerce
2. Congress may regulate the instrumentalities of IC such as railroads,
airlines, and trucking companies, since these activities are conduits through which IC occurs
3. By using the N&P Clause in conjunction with the CC, the commerce
power also includes the authority to regulate any economic activity that has a substantial relationship with IC or that substantially affects that commerce
Under this 3rd category, barely any economic or commercial activity escapes the CC power bc of the interdependence of our national economy. The key word being “substantially” its meaning has taken sharply contradictory meanings from the court over the years.
Gibbons
Ogden had a monopoly for operating steamboats in NY waters, and then
Gibbons began operating boats in the same area with permission under federal law.
The Court found that “navigation” was included in the commerce power
bc it was necessary to regulate the procedures and everything else that affects commerce.
TAKE AWAY: the power to regulate commerce among the states is the power to
do so in a way that will work.
Hammer
Congress is trying to indirectly regulate child labor through directly regulating
products of child labor. They are keeping their power within Constitutional bounds while still fulfilling their public policy goals.
The Court doesn’t agree and holds that the Act does not really regulate
commerce, but rather aims to stop child labor which pertains to production (which Congress may not regulate). If Congress is allowed to regulate the production methods through the CC, then Congress will essentially have the power to overstep its bounds on any issue by halting commerce of all things it disagrees with.
TAKE AWAY: the notion that whatever the CC is is to regulate things that cross
state boundaries. But despite this, there is still a 10th Amendment limitation.
Schechter Poultry
The law at issue regulated the hours and wages of employees in the poultry
business.
“The mere fact that there may be a constant flow of commodities into a
state does not mean that the flow continues after the property has arrived and has become commingled with the mass of property within the state and is there held solely for local disposition and use”
TAKE AWAY: The federal regulation power should not extend this far into the stream of commerce. This case opened up the direct vs. indirect effects test.
Carter Coal
The Bituminous Coal Act attempted to regulate many of the procedures and
local aspects of the coal business under the guise of regulating the national market.
The production of coal was deemed a local function and thus not within the direct control of Commerce.
TAKE AWAY: rejection of the effects test and the distinction in trying to
find the line be
the first time in 60 years, Court
invalidated Federal statute on grounds that it was beyond Congress’ CC power.
Gun Free School Zones Act: made it a Federal crime to possess a firearm in a school zone.
Statute has no explicit connection to interstate commerce, unlike other federal statutes based on CC power
No Congressional findings that the activity being regulated affects
interstate commerce.
No jurisdictional hook: Congress could have but did not make it a crime to possess a gun that had traveled in IC. This would have given the “hook” to IC that it needs.
Activity must “substantially affect” IC for Congress to regulate. Possession of
guns in school zones has not been shown to do so.
The particular activity being regulated (possession of guns) is not itself
an economic activity.
Distinguished from Wickard
Wickard involved economic activity in a way that gun possession does
not.
Also, gun Act not a part of an overall regulatory scheme; in which
regulation of the local activity is essential to the larger regulation of economic activity.
Government argues: gun possession does have a substantial effect on interstate
commerce
Possession may result in violent crime
Violent crime affects the national economy in several ways:
1. Costs of crime are insured against and are spread across state lines bc of interstate insurance market
2. Violent crime reduces individual’s willingness to travel
3. Violent crime in schools reduces ability to educate students who thus become less productive members in society
Court rejects this argument as too attenuated and all-encompassing (i.e. using this approach, every activity under the sun could be regulated by Congress, would be no limit to federal power.
To uphold this, Court “would have to pile inference upon inference” in a
manner that would effectively convert Congressional CC power into a general police power of the sort reserved to the states. (10th A)
TAKE AWAY: Lopez establishes 3 categories of CC legislation:
1. Channels/instrumentalities of commerce
2. Things traveling in commerce, jxd hook (missing from Gun Act)
a. Jxd hook= tying Congress’ regulatory power to things moving in commerce, even though the thing being regulated is inside the state/intrastate
3. Activities that substantially affect commerce
a. Economic/commercial activities (growing wheat)
i. Leaves open the possibility that Congress can aggregate these activities to show substantial effects
ii. Court gives no test for what constitutes “an economic activity”
b. Non-economic activities do not substantially affect commerce (possession of guns); we cannot aggregate these.
c. Lack of Congressional findings will hurt the case for substantial affects; however, presented findings are not outcome determinative.
