I Powers of Congress:
A. If the Congressional regulation does not fall within one of the powers outlined in article I, and the regulation is not necessary and proper, then the power is reserved to the states.
B. The Enumerated Powers
1. The Enumerated Powers of Congress include
Interstate commerce
Taxing and spending
2. DC: Congress can regulate the District of Columbia
3. Federal property: Congress has power to regulate and dispose of federal property
4. War and defense: Congress can declare war, and can establish and fund the armed forces
5. Enforcement of Civil War amendments: Congress can enforce the post-Civil War amendments. (For instance, under its power to enforce the Thirteenth Amendment’s abolition of slavery, Congress can ban even private intrastate non-commercial conduct.)
C. Necessary and Proper:
1. Implied Powers: Congress has the power to make laws that are necessary and proper for executing the enumerated powers. Example: McCulloch v Maryland
[Example McCulloch v. Maryland]: Congress has power under the Constitution to incorporate a bank pursuant to the Necessary and Proper clause (Article I, section 8) because banks are necessary to Congress’s express power to collect taxes.
2. Rational Objective
The “Necessary and Proper” Clause means that if Congress is seeking an objective that is within the specifically enumerated powers, then Congress can use any means that is: (1) rationally related to the objective Congress is trying to achieve; and (2) is not specifically forbidden by the Constitution.
3. Formation of Centralized Government (Federalism):
Marshall reads in his federalist ideology in McCulloch which strengthens the centralized government while still respecting state sovereignty. If we allow the government to tax the states, but the states can't tax the federal government. Marshall writes that “power to tax is the power to destroy”.
II Commerce Clause (159-180)
A. Source: Article I § 8 Clause 3: Congress has the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
1. Commerce Power Defined:
Every Species of Commercial Intercourse which concerns more state than one and included within the concept virtually every form of activity involving or affecting two or more states [Gibbons].
Three Categories: If the legislation is economic activity, then Congress has the power to regulate the activity. Congress can regulate economic activity if the activity is the channels of interstate commerce, the instrumentalities of interstate commerce, or substantially related to interstates commerce.
B. Police Power disguised as Commerce Power
1. Congress can regulate police power by banning a product from entering interstate commerce. Congress has the power to regulate an undesirable activity. The power to regulate includes the power to prohibit. Congress can prohibit any activity that it deems adverse to the public health and welfare.
Example: [Fed Police Power Upheld] Lottery tickets are commerce that can be sold and transported. Congress can regulate gambling which is police power, by prohibiting the transport of the good into interstate commerce. [Lottery Tix]
Example: [Fed Police Power Struck Down] Law banning child labor struck down because labor is primarily a local concern. Uniform child labor laws are not needed to prevent unfair competition. [Hammer v. Dangenhart, overruled]
Example: [Fed Police Power Upheld] [U.S. v Darby]
Example: [Fed Police Power Struck Down] [Direct Test] Law prohibiting the shipment of sick chickens struck down because regulating the shipment of sick chickens is a state police power. The regulation of sick chickens does not have a direct effect on interstate commerce. [Schechter Poultry]
1. Close and substantial relationship to interstate traffic: The only intrastate activity that Congress could regulate in the pre-37 era was transportation.
Example: [Fed regulation of intrastate commerce upheld] Texas Railroad Commission set rates for intrastate railroad companies, which are substantially lower than the rates the federal Interstate Commerce Commission sets for its interstate lines. The rate disparity made it difficult for merchants in Shreveport, Louisiana to compete with Texas merchants in Texas markets because the rates causing the unfair advantage have a close and substantial relation to interstate traffic.
Example: [Fed law regulating intrastate commerce struck down] Congress does not have the general power to regulate for the promotion of the general welfare. Congress does not have the power to regulate production before the product is in commerce. Congress has the power to regulate transportation of interstate commerce. Congress does not have the power to regulate manufacturing and production which are purely local activities. [Carter v. Carter Coal]
III Broad Commerce Clause
A. Commerce Clause covers three categories: 1) the use of channels of interstate or foreign commerce, 2) protection of the instrumentalities of interstate commerce, and 3) activities affecting interstate commerce.
B. Substantial Effect on Interstate Commerce
Test: Where the federal law has a substantial impact on interstate commerce, then Congress is within the bounds of its commerce power. Congress will apply the substantial effect on a case-by-case basis to determine whether the act or article affects commerce.
Congressional authority is to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a “flow” of interstate or foreign commerce.
Activities that can have a substantial effect on interstate commerce include local employer-employee relationship, local production that has an aggregate impact on the economy, burdens or obstructions to interstate commerce, civil liberties in some cases.
Congress has the power to regulate commerce even if that commerce is in an illegal market.
Congress has the power to regulate illegal activity that has a substantial impact on interstate commerce [see Federal Criminal Laws that Protect Interstate Commerce below]
Power to regulate commerce is the power to enact “all appropriate legs for its protection or advancement; to adopt all measures to promote its growth and ensure its safety [NLRB]
Examples:
Example [Substantial effect found] NLRA act challenged because labor is a local activity. Law upheld because regulating national employers will have a substantial effect on interstate commerce. that prevented strikes in Coal Mines upheld because preventing strikes is essential to the production of coal which is essential to manufacture steel. The [NLRB v. Jones]
Example [substantial effect found] The court held that the Fair Labor Standards Act that attempted to stop interstate competition in the distribution of goods produced under substandard labor conditions was constitutional because min wage, max hours law have a substantial impact on Interstate Commerce. The commerce clause power extends to regulate an intrastate activity that has a substantial effect on Interstate commerce. Manufactured goods are not itself Interstate commerce, but shipment of products is within commerce clause power. [U.S. v. Darby]
Example [substantial effect found] The court upheld the Agricultural Adjustment Act 1938 on the grounds that the aggr
itical process test
Example: [State sovereignty not upheld] Congress’s passage minimum-wage and overtime provisions, which contains no exemption for state employees of mass transit systems does not unconstitutionally violate the state’s regulatory immunity because the political process ensures that laws that unduly burden the states will not be promulgated [Garcia]
No impermissible commandeering forcing states to implement a federal program. No coercive choices forced on states will be constitutional. [New York v. New York]
Example: [Law Unconstitutional] the “take title” provision that requires state to dispose toxic waste within their borders violates the Tenth Amendment. Congress may not force a state to enact and enforce a federal regulatory program. New York v. United States.
Alternative Choices Congress could have made:
– Congress could have had a tax and spending clause that could have encouraged low level waste, or attached conditions to federal grants instead of forcing the states to adopt a federal regulation, or take title to the toxic waste.
VI Taxing Power (241-351)
A. Taxing power:Congress has the power to “lay and collect taxes.” (Art. I, §8.) This is an independent source of congressional power, so it can be used to reach conduct that might be beyond the other sources of congressional power.
B. Regulation v Raising Revenue Test (Pre 1937)
1. Pre 1937 Test was to prohibit any taxes that were used for regulating state matters. Bulter has been overruled, but the scope of federal power outlined in Bulter is still used today.
Example: [No T&S, Reg, not Rev] Congress may not use its taxing and spending powers to operate a self-contained program regulating agricultural production. The power of Congress to authorize expenditures of public monies for public purposes is not limited by the direct grants of legislative power found in the Constitution, but it does have limits. Appropriations cannot be made as means to an unconstitutional end. Regulation of agricultural production is not a power granted to Congress; therefore it is left to the states. Attainment of such a prohibited end may not be accomplished through the use of granted powers—here, the taxing powers. This scheme, purportedly voluntary, in reality involves purchasing, with federal funds, submission to federal regulation of a subject reserved to the states. Because the end is invalid, it may not be accomplished indirectly through the taxing and spending power. [Butler]
2. Test: Raising Revenue and Regulatory both okay. It is a legitimate of the revenue raising power even if it is negligible
Example: [Law constitutional] Congress regulation that executive officials cannot accept bribes in excess of $10,000 constitutional because money is a fungible products, and Congress’s interest is to have trustworthy federal officials [Sabri]
Example [Law Constitutional] Duty imposts, and excises must be uniform, direct taxes must be proportional to the population. The SSA is a uniform tax. [Stewart]
