CONSTITUTIONAL LAW
MORRISON FALL 2014
Part I. Federal Powers of the Legislative Branch
1. Federal Powers
a. Federal powers are found in:
o Article I, § 8
o Scattered around the remainder of the constitution
o In ‘enforcement clauses to some (not all) amendments
b. The constitution created the federal government
a. The government then has only the powers listed in or implied by the constitution.
b. States retain all of the other powers.
2. Article I, § 8
a. Most commonly used powers:
o Commerce Clause
o Taxing Clause
o Spending Clause
o Necessary and Proper Clause
b. Other powers in 1:8:
o Borrow money on credit for US (para. 2)
o Establish uniform rule of Naturalization (para. 4)
o Coin money and regulate value thereof (para. 5)
o Fix Standard of weights and measures (para. 5)
o Establish post offices and post roads (p. 7)
o Copyrights and Patents (p. 8)
o Create tribunals inferior to Supreme Court (p. 9)
o Declare war, grant letters of Marque and reprisal (p. 11)
o Raise and support Armies (p. 12)
o Provide and Maintain a Navy (p. 13)
o Military powers (ps. 12-16)
o Necessary and Proper clause (p. 18)
c. Other Powers:
o Foreign relations powers, Art. II
o Power over federal property Art. IV, § 3, para. 2
3. Congress and the States
a. Basic Principle of American government is that Congress may only act if there is express or implied authority in the Constitution.
b. Conversely, states may act unless the Constitution prohibits that action.
c. Congress’s powers have usually been defined relative to the states and their authority and rights. Many battles have been fought over how power should be allocated between the states and federal government
4. Necessary and Proper Clause
a. Article I, § 8, para. 18 gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this constitution in the Government of the United States, or in any Department or Officer thereof.”
b. The Necessary and Proper Clause grants Congress the power to make all laws necessary and proper for carrying into execution any power granted to any branch of the federal government.
i. Example: Congress has the power to charter banks since that power is appropriate to executing Congress’s enumerated power to tax, borrow money, regulate commerce, etc. McCulloch v. Maryland.
ii. Limitation: Congress cannot adopt a law that is expressly prohibited by another provision of the constitution
c. It would be an incorrect assumption to state that the word ‘necessary’ demands that for a law to be legitimate, it must be demanded by physical necessity, or “that one thing to which another may be termed necessary, cannot exist without the other”. The Court further reasons that if a government has the power to commit an act, it should also be able to have the power to choose the means by which to accomplish the act (McCulloch v. Maryland).
d. In a similar case, where the authority to legislate criminal laws was challenged. The power was justified using the commerce clause: “Far from a general police power, the law is a reasonably adapted and narrowly tailored means of pursuing the government’s legitimate interest as a federal custodian in the responsible administration of its prison system” (United States v. Comstock).
e. NOTE that the clause it not itself a basis of power, it merely gives Congress the power to execute specifically granted powers. Thus, if an exam question asks what is the best source of power for a particular act of Congress, the answer should not be the N&P clause, standing alone.
5. The Commerce Power Overview
a. Article I, § 8, para. 3 states that Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”
b. Congress has power over
i. Things in ‘commerce’ or the ‘stream of commerce.’
ii. Instrumentalities of commerce
iii. Things ‘affecting commerce’, i.e. substantially related.
c. There have been four areas of Commerce Clause jurisprudence:
i. Initial era – 1890’s, broadly defined and minimally used
ii. 1890’s – 1937, narrowed the scope, and used 10th amendment as a limit.
iii. 1937 – 1990’s, expansive definition, did not apply 10th amendment as a limit
iv. 1990’s – present, Once again narrowing of the scope and revival of the 10th amendment
6. Early Commerce Clause Cases
a. The flagship case regarding the C.C. is Gibbons v. Ogden, in which the courts issued a broad interpretation of ‘commerce among the states’ to include navigation.
b. Justice Marshall writes, “”The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals, in the actual employment of buying and selling, or of barter” (Gibbons v. Ogden).
c. Later cases, such as E.C. Knight, drew a sharp distinction between ‘manufacturing’, which was outside of federal power, and ‘commerce’, which can be subject to federal regulation.
d. E.C. Knight – “Commerce succeeds to manufacture, and is not a part of it”.
7. Limits on the Commerce Power
a. The Federal Government can only regulate:
i. Things actually ‘in commerce’ Gibbons v. Ogden.
ii. Things ‘in the stream of commerce’ The Daniel Ball, Shreveport Rate Case
iii. Instrumentalities of commerce, Shreveport Rate Case
iv. Activities that have a substantial effect on interstate commerce, Wickard
b. States have exclusive power over everything else.
c. Congress could not at one point enact Labor Laws, as the “relationship of employer to employee is a local one”, Carter v. Carter Coal.
d. Shreveport Rate Case – “That is not to say that congress possesses the authority to regulate the internal commerce of a state, as such, but that it does possess the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although interstate transactions of interstate carriers may thereby be controlled”.
e. Intrastate
ongressional finding to support the law.
iii. “The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the Act exceeds the authority of Congress” United States v. Lopez.
b. Congress cannot make gender-related violence a federal crime U.S. v. Morrison (2000).
i. If there is no economic (i.e. commercial) element, the activity must have a substantial relation to commerce.
ii. “The laws exceeded congress’s section 5 power because the law was directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers” Morrison.
iii. Essentially, the 14th amendment protections were meant to protect against actions by states, officers, etc., not private individuals.
c. Economic inactivity is not covered by the commerce clause, but some laws can still be ruled as valid under another provision. National Federation of Independent Businesses v. Sebelius
i. The court held that the requirement to purchase health insurance, the individual mandate in the Affordable Care Act, could not be protected under the commerce power, despite the fact that one sixth of the nation’s economy revolves around health care.
ii. However, they affirmed the program anyways under the taxing power of congress. This was in large part because the fee for not owning health insurance was collected by the IRS and assessed in the manner of a tax.
10. Defining ‘Commerce Among the States’
a. There are three areas of law in which the court has had the occasion to consider what commerce among the state means.
b. Civil Rights Law – The Civil Rights Act of 1964 prohibited employment discrimination based on race, gender, or religion and further banned racial discrimination by places of public accommodation such as hotels and restaurants. They justified this under the commerce clause. Refer back to Heart of Atlanta Motel and Katzenbach to see how congress defined the scope of congressional power through the lens of civil rights.
c. Regulatory Law – In Hodel v. Indiana, the court upheld a federal law that regulated strip mining and required the reclamation of strip-mined land.
d. Criminal Law – The opinion in Perez v United States regarded crimes, particularly loan-sharking, as activities while, not necessarily interstate, but rather local, nevertheless as an aggregate affected the entire economy and the interstate commerce. Therefore congress was found to have valid authority to enact criminal statutes of this nature.
