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Constitutional Law I
University of South Carolina School of Law
Brown, Josie F.


– In evaluating the Conality of any act of Congress – 2 questions: does Congress have the auth under the Con to leg in Art I §8 of Con?
– If id does have the power, does the law violate another Con provision or doctrine, like separation of powers or interfering w/ individual liberties
1) McCulloch v. Maryland (1819) – Held – act to incorporate the Bank of US made in pursuance of Con – State law imposing a tax on Bank of the US was uncon and void b/c states had no power to burden the operations of the con laws enacted by Congress.
a) Congress has power to incorporate a bank.
~ End goal legit and w/I scope of the Con,
~ Means appropriate to get to end – plainly adapted and not prohibited,
b)Congress may act only if there is express or implied authority in Con. States may act unless Con prohibits such action.*Focus division of power b/w Congress & the states*
~ If expressly given by Con – degree of its necessity is a question of leg discretion, not of judicial
~ Power of est bank not a distinct sovereign power or end of gov’t, but only the means of carrying into effect other powers which are sovereign.
Æ There is nothing in the Con which exclude incidental or implied powers
Æ similar to the articles of confederation
c) Whenever it becomes an appropriate means of exercising any of the powers given by Con to gov’t of states, it may be exercised by that gov’t
d) States have no power, by taxation, or otherwise, to retard, impede, burden, or in any manner control the operations of the Con laws enacted by Congress, to carry into effect the powers vested in the nat’l gov’t
2)Defining Congress’s Power – Two key underlying normative issues
a) How important is the protection of state sovereignty and federalism
~ Oppose judicial protection of states as limit on Congress’s power
Æ Nat’l leg is needed to deal w/ national problems
Æ Court should not limit Congress’s auth or use the 10th A to invalidate fed laws
~ Favor judicial use of federalism as a constraint on Congress power
Æ Three benefits of protecting st./gov’t
-Decreasing the likelihood of fed tyranny,
§ More likely autocratic rule at the fed not st level
§ Contra – face of modern national market economy, no need
-Enhancing democratic rule by providing gov’t that is closer to people
§ States are closer to the people and likely to be responsive to public needs and concerns – more immediately accountable
§ Greater danger that the greater responsiveness inc the dangers of gov’t tyranny – greater danger of special interests capturing gov’t at smaller and more local levels
-Allowing states to be laboratories for new ideas
§ When is it worth risking Con rights when states agree to be labs – and who is in the best position to decide what is best
§ Judicial protection v. state protectionalism
b) Role of the judiciary to protect state prerogatives or the political process? Should Judiciary enforce the 10th A and protect st. sovereignty or if this is an issue that should be left to politicians?
~ Political process will adequately protect st. gov’t interests
~ When Con was written states chose Senators, thus were directly rep in Congress, today popular elections of Senators, so it is harder to argue that the states’ interests as states are adequately protected in Congress
3)Sup/Ct has defined scope of Congress’s powers under 3 crucial Con provisions: Commerce power, Spending power, and §5 of 14th A
1)Initial Era: Gibbons v. Ogden Defines the Commerce Power – Broadly (1824)
a) Held for ∆s – act of Congress gave full authority to ∆s’ vessels to navigate the waters of US. The NY state law, prohibiting the vessels from navigating the waters of the state, was repugnant to the Con and void.
b) Commerce is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse
c) Commerce among states, can’t stop at the external boundary line of each State, but may be introduced into the interior – In regulating commerce w/ foreign nations, the power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power, if it could not pass those lines.
~ deep streams which penetrate the country in every direction, pass through the interior of almost every state in the Union, and furnish the means of exercising this right.
~ If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the states, if a foreign voyage may commence or terminate at a port within a state, then the power of Congress may be exercised within a state.
d) Validity of state laws depends on their interfering w/, and being contrary to, an act of Congress passed in pursuance of the Con.
~ Whether the laws of a state have come into collision w/ an act of Congress, and deprived a citizen of a right to which that act entitles him
~ Should this collision exist, it will be immaterial whether those laws were passed in virtue of a concurrent power or, in virtue of a power to regulate their domestic trade and police.
e) Nullity of any act, inconsistent w/Con, is produced by declaration, that Con is the supreme law.
f) Act of Congress, or the treaty, is supreme; and state law state, though enacted in the exercise of powers not controverted, must yield to it
2)1890s-1937: Limited Federal Commerce Power: Narrow definition, Scope limited by 10th A
a) Court narrowly interpreted the scope of Congress’s commerce power leaving reg matters to the state gov’t and Ct applied 10th A to reserve a zone of activities for exclusive state control and invalidated fed/laws that were w/I Congress’s commerce power that usurped state prerogatives .
b) First it narrowly defined “commerce”,
~ US v. E.C. Knight
Æ Power of a state to protect the lives, health, and prop of its citizens, and to preserve good order & public morals, the power to govern men and things w/i limits of its dominion, is a power originally and always belonging to states, not surrendered by them to general gov’t, nor directly restrained by Con, and essentially exclusive
Æ That which belongs to commerce is w/I the jurisdiction of the US, but that which does not belong to commerce is within the jurisdiction of the police power of the state
Æ Dissent – The court holds it to be vital in our system of gov’t to recognize and give effect to both the commercial power of the nation and the police powers of the States, to the end that the Union be strengthened and the autonomy of the States preserved – – Any combination, therefore, that disturbs or unreasonably obstructs freedom in buying and selling articles manufactured to be sold to persons in other States or to be carried to other States — a freedom that cannot exist if the right to buy and sell is fettered by unlawful restraints that crush out competition — affects, not incidentally, but directly, the people of all the States; and the remedy for such an evil is found only in the exercise of powers confided to a gov’t which, this court has said, was the gov’t of all, exercising powers delegated by all, representing all, acting for all. McCul

ess under the CC.
-CC granted Congress plenary authority over interstate commerce, it was within Congress’ power to invoke the Act and prohibit carriage of such tickets among states.
Æ Power to regulate commerce is plenary, complete in itself
-Maybe exerted by Congress to its utmost extent
-Subject only to such limitations as the Con imposes upon the exercise of the powers granted by it;
-Determining character of reg to be adopted Congress has a large discretion which is not to be controlled by courts, simply b/c in their opinion, such reg may not be the best or most effective that could be employed
-observation leaves it to be determined whether Congress in prescribing a particular rule has exceeded its power under the Con
e) S/ct majority was deeply committed to Laissiz-fair, unregulated economy and often declared State laws regulating employment and commercial transactions as violating freedom of K protected under DPC
3)1937-1990s: Broad Federal Commerce Power
a) Three cases adopted broad def of “commerce” and “among the states” and reject the 10th A as a limit on Congress’s CC power
~ Commerce includes all stages of business, no longer is a distinction drawn b/t commerce and other stages of business such as mining, manufacture, and production
~ Congress can reg any activity intrastate or interstate, that has a substantial effect on interstate commerce
~ Indeed Congress can reg act that have little effect on interstate commerce if the activity looked at cumulatively throughout the country has a substantial effect on commerce
~ 10th A as Darby states is simply a reminder that for Congress to leg it must point to express or implied power. It is no longer seen as reserving a one of activities for exclusive state control
b) Jones &Laughlin Steel Corp. –National Labor Relations Board, challenged Nat’l Labor Act
~ NLRA was a proper exercise of Congress’ power to regulate interstate commerce, that employees had a right to self-organization, & discrimination and coercion to prevent exercise of this right was a proper subject for condemnation by leg Auth. Act applied to respondent’s EEs who were engaged exclusively in production because intrastate activities that were closely connected to interstate commerce were subject to regulation by Congress
~ Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.
Æ Power of Congress over interstate commerce is plenary, and may be asserted to protect it, no matter what the source of the dangers which threaten it.
power to enact all appropriate legislation for its protection and advancement, to adopt measures to promote its growth and insure its safety, foster, protect, control