The powers of Congress are enumerated in several places in the Constitution.  The most important listing of congressional powers appears in Article I, Section 8 (see left) which identifies in seventeen paragraphs many important powers of Congress.  The last paragraph of Article I, Section 8 grants to Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers"--the "Necessary and Proper Clause."  The proper interpretation of the Necessary and Proper Clause was the subject of a heated debate between such important figures as Alexander Hamilton (who argued that the clause should be read broadly to authorize the exercise of many implied powers) and Thomas Jefferson (who argued that "necessary" really meant necessary).  Hamilton's more flexible interpretation makes possible a strong central government, whereas Jefferson's narrower interpretation strengthens states' rights.

The famous case of McCulloch vs Maryland considered whether Article I, Section 8 gave Congress the power to create a national bank and, if so, whether the state of Maryland could tax it.  For nine days, Daniel Webster and former Constitutional Convention delegate Luther Martin jargued the case before the justices of the Supreme Court.  Chief Justice John Marshall, writing for the Court, found the Necessary and Proper Clause gave Congress the flexibility to create the bank as an aid to carrying out its enumerated borrowing and taxing powers and that Maryland's taxation of the bank violated the Supremacy Clause.
 

Attorneys for McCulloch (Daniel Webster, left) and Maryland (Luther Martin, right) in McCulloch (or M'Culloch) vs Maryland

U. S. vs Gettysburg Elec. Ry. Co. (1896) considered whether Congress had the power to condemn a railroad's land in what was to be Gettysburg National Military Park.  Writing for the Court, Justice Peckham found that the power to condemn the railroad's land was implied by the powers of Congress to declare war and equip armies because creation of the park "tends to quicken and strenghten" the motives of the citizen to defend "the institutions of his country." 

The next series of cases illustrate two divergent approaches to analyzing whether an activity is reachable under the commerce power.  In U. S. vs E. C. Knight the Court concluded that the Congress lacked the power to reach a monopoly in the "manufacture" of refined sugar, but could reach a "monopoly of commerce" involving sugar.  The Knight case illustrates the formal (or "categorical") approach to analyzing the reach of the commerce power.  The formal approach focuses on such questions as whether the regulated activitity is "in" or "outside" the stream of commerce, whether the activity is "local" or "interstate," or whether the effects of the activity on interstate commerce are "direct" or "indirect."  The contrasting empirical approach, illustrated by Houston E. & W. Ry. Co. vs U. S., looks to the magnitude of the effect that the regulated activity has on interstate commerce, without special regard to how the activity is categorized.  In Houston, the Court upheld a federal agency's regulation of freight rates on travel wholly within Texas because the freight transporation within Texas was found to be substantially affecting interstate commerce.

Hammer vs Dagenhart (1918) considered the constitutionality of the Child Labor Act, which banned items produced by child labor from interstate commerce.  Adopting the formal approach, the Court saw the Act as unconstitutional attempt to regulate a purely local matter, workplace conditions.  The harm of child labor, the Court concluded, had nothing to do with interstate commerce and thus fell outside the reach of congressional power.

N.L.R. B. vs Jones (1937) represented an important turning point in the Court's Commerce Clause jurisprudence.  The year before, in a case called Carter vs Carter Coal Co., the Court had invalidated a New Deal program that attempted to regulate the wage and hour practices of coal companies on the ground that such practices were "local" and had only an "indirect" effect on interstate commerce.  Enraged by the Court's decision in Carter and other cases, President Roosevelt proposed "packing the Court" with sympathetic justices by increasing its size from nine to fifteen.  In N.L.R. B. vs Jones, Chief Justice Hughes and Justice Roberts side with the government in voting to uphold an N.L.R.B. action ordering the reinstatement of union organizing employees protected by federal law at a Pennsylvania steel plant--the "switch in time that saved nine."  Over the objections of four dissenting justices who called the interstate effects of the regulated activity "too indirect," the Court concluded that the steel industry is an interstate web of activities stretching from the iron mines of Minnesota to the steel plants of Pennsylvania and thus the manufacturing of steel is properly reachable under the Commerce Clause.

U. S. vs Darby (1941), in unanimously overruling Hammer vs Dagenhart, demonstrated how much the Court had changed its approach to Commerce Clause in a generation.  Using a "substantial effects" test, the Court upheld the Fair Labor Standards Act--an important piece of legislation that effectively set national minimum wage and maximum hour laws by prohibiting the interstate shipment of goods manufactured in violation of the federal standards.

Once having established that congressional exercises of power were valid if shown to regulate activities "substantially affecting" interstate commerce, the Court proceeded to open up more opportunities for exercise of the commerce power by holding that an activity only trivially affecting interstate commerce might nonetheless by regulated if all of the regulated activities of various individuals--taken cumulatively--had substantial interstate effects.  In Wickard vs Filburn (1942), for example, the Court upheld a $117 penalty imposed on a Ohio farmer for growing wheat on 12 more acres than he was permitted to under the Agricultural Adjustment Act.  The cumulative effects test also convinced the Court to uphold provisions of the 1964 Civil Rights Act that required the 216-room Heart of Atlanta Motel to rent its rooms to persons regardless of race (Heart of Atlanta vs U. S.) and  outlawed racial discrimination at small restaurants such as Ollie's Bar-B-Q in Birmingham (Katzenbach vs McClung).  In 1971, legislation making loansharking a federal crime was upheld on a similar basis (Perez vs U. S.) . The Heart of Atlanta, McClung, and Perez cases led to speculation that perhaps any activity might be regulated under a loose application of the cumulative effects test.

Moreton Rolleston Jr., owner of the Heart of Atlanta motel
(photo: Wayne Wilson/Leviton-Atlanta)

In 1995, however, the Supreme Court--for the first time in more than half a century--invalidated a federal law on the ground that it was outside the scope of the commerce power.  In U. S. vs Lopez the Court, by a 5 to 4 vote, found unconstitutional a provision of the Gun-Free School Zone Act that made it a federal crime to possess a gun (even one that never traveled across state lines) within a thousand feet of a school ground.  It was unclear whether the government lost because the Congress failed to make adequate factual findings about the impact of school gun violence on interstate commerce or whether the Court was convinced that the interstate impact of possessing guns near schools had only an insignificant effect on interstate commerce.  The four dissenters argued that it was sufficient for the Congress to show it had a rational basis for finding a significant effect on interstate commerce.

In U. S. vs Morrison (2000) the Court considered a suit brought by a former student of Virginia Poytechnic Institute who alleged she was raped by two university football players.  The defendant players and university argued that the Violence Against Women Act, which allowed victims of gender- motivated violence to bring federal civil suits for damages, was outside of the scope of the commerce power.  The Court agreed with the defendants, even though in this case Congress had made specific findings that gender-motivated violence deterred interstate travel, diminished national productivity, and increased medical costs.  The Court concluded that upholding the Violence Against Women Act would open the door to a federalization of virtually all serious crime--as well as family law and other areas of traditional state regulation.  The Court said that Congress must distinguish between "what is truly national and what is truly local"--and that its power under the Commerce Clause reaches only the former.  In a concurring opinion, Justice Thomas went even further, urging abandonment of "the substantial effects" test.

Angel Raich, allowed to use marijuana for medical purposes under California's Compassionate Use Act, sued Attorney General Ashcroft to prevent further federal raids on her home and garden.  (American Bar Journal photo) In the fall of 2004, the Supreme Court heard arguments in Ashcroft v Raich.  The case raises the issue of whther federal drug laws prohibiting the private possession of marijuana preempt state laws that authorize possession and consumption for medical pruposes with a doctor's prescription.  The United States contends that laws authorizing medical marijuana in California and 10 other states interfere with federal drug enforcement.  Raich and fellow medical marijuana user Diane Monson argue that medical marijuana grown and consumed entirely on private property, or provided by a local medical caregiver,  is not "an article of commerce" within the power of Congress to regulate.  The question the Court asks: "Is this case distinguishable from the wheat-consumer in Wickard v Filburn?" An answer will come in 2005.  It will be interesting to see how the conservatives on the Court, who generally support federalism, vote in this case.  Noteworthy, given the position of these southern states on drug enforcement issues, is the fact that the states of Alabama, Louisiana, and Mississippi signed an amicus brief supporting California's position in the case.

The Court has flip-flopped on the issue of whether Congress has the constitutional power to tax in order to accomplish regulatory goals that would otherwise be outside of the scope of its enumerated powers.  In Bailey vs Drexel Furniture (1922), the Court invalidated a 10% tax on the annual profits of employers who knowingly employ child labor.  The tax, imposed after an earlier attempt to block the interstate transportation and sale of products produced by child labor was struck down in Hammer, was seen by the Court as an unconstitutional attempt to make an end-run around its earlier decision.  The Court reversed its ban on taxes serving primarily regulatory (rather than revenue-producing) goals in Steward Machine (1937), which upheld a tax on employers designed to encourage states to enact unemployment compensation schemes.  In Kahriger (1953), the Court upheld a law requiring bookies to register and pay on tax on all wagers--even though the tax had the regulatory goal of wiping out bookmaking operations and could not be expected to produce significant revenue.
 

1. The alternative to a government of enumerated powers is, of course, a government of unenumerated powers.  The Constitution might have said "Congress shall have all powers not specifically prohibited elsewhere in this Constitution."  What are the advantages and disadvantages of each system?
2.  It would be silly to say, for example, the "power to establish post offices" did not include the power to print postage stamps or pay mail carriers.  But does it also include the power to advertise the joys of stamp collecting on television?  How broadly or narrowly should the enumerated powers be read?  Should the "Necessary and Proper Clause" be interpreted as authorizing actions rationally related to one of the listed powers, or only actions "necessary" to carrying out a listed power?
3.  Thomas Jefferson had serious doubts as to whether the Constitution gave him the power to acquire land from France through the Louisiana Purchase, but he went ahead with the deal anyway.  Was the Louisiana Purchase constitutional?  What might be the constitutional source for the power to acquire lands?
4.  In McCulloch vs Maryland, Chief Justice Marshall notes that the Constitution is not a statute, and suggests that it should be read more liberally and flexibly than a statute so that it might serve the ages.  Do you find Marshall's argument about constitutional interpretation persuasive?
5.  Thomas Jefferson was none too pleased with the decision in McCulloch.  Jefferson said, "The judiciary of the United States is a subtle core of sappers and miners constantly working underground to undermine the foundations of our confederated fabric."  What do you think about Jefferson's characterization?
6.  In Gettysburg, the Court says that to justify an exercise of congressional power, "any number of powers may be grouped together, and an inference from them all may be drawn that the power claimed has been conferred."  This is the so-called "implied powers doctrine."  Is the Court now moving in the direction of abandoning this doctrine and insisting upon more specific textual support to sustain exercises of federal power?

In 2003, by a vote of 7 to 2, the Court ruled in Eldred that Congress did not exceed its power under the Copyright Clause. 
 

The power to protect original works of authorship: Eldred vs Reno (2001)(D.C. Circuit) and other legal documents are accessible from: Harvard's Open Law Eric Eldred, plaintiff in suit challenging the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act (photo: ABA Journal)

The signing of the Louisiana Purchase treaty Thomas Jefferson read the powers of the Constitution narrowly.  As Secretary of State under President Washington, Jefferson argued, unsuccessfully, that Constitution prohibited the establishment of a national bank or federal assumption of state debts.  Debating Alexander Hamilton, Jefferson warned, "To take a single step beyond the boundaries thus specially drawn aroung the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition." As President a decade later, Jefferson worried whether the Constitution provided the power to annex new territory--specifically, the Territory of Louisiana, which France offered to the United States for purchase.  Writing to a friend at the time, Jefferson expressed doubts about whether the Constitution enabled him to acquire the extensive new lands streching across the vast middle of the continent.  In the end, however, the Louisiana Purchase was too great an opportunity to pass up.  Jefferson's view became somewhat more Hamiltonian: he concluded that the Constitution implicitly allowed the United States to acquire territory and gave the Congress to admit the territory as a new state, annex the territory to an existing state, or to regulate it as a territory.