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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.
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."
COMMERCE POWER 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 Court relied on Wickard in the 2005 case of Gonzales v Raich, upholding the
power of Congress to authorized seizure of doctor-prescribed marijuana
allowed under the laws of California and other states. The Court
in Gonzales noted that local
use of medical marijuana had a cumulative effect on the black market
for marijuana.
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.
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Article I,
Section 8 gives
Congress the power to "lay and collect taxes, duties, imports, and
excises."
The Constitution allows Congress to tax in order to "provide for the
common
defense and general welfare." 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.
In the 1987 case
of South
Dakota vs Dole, the Supreme Court considered a federal law that
required
the Secretary of Transportation to withhold 5% of a state's federal
highway
dollars if the state allowed persons less than 21 years of age to
purchase
alcoholic beverages. South Dakota, which allowed 18-year-olds to
drink and stood to lose federal funds for highway construction, sued
Secretary
Dole, arguing that the law was not a constitutional exercise of the
power
of Congress to spend--but rather was an attempt to enact a national
drinking
age. In upholding the federal law, the Court announced a four-part test
for evaluating the constitutionality of conditions attached to federal
spending programs: (1) the spending power must be exercised in pursuit
of the general welfare, (2) grant conditions must be clearly stated,
(3)
the conditions must be related to a federal interest in the national
program
or project, and (4) the spending power cannot be used to induce states
to do things that would themselves be unconstitutional. The Court
considered--perhaps unrealistically--the grant condition to be a
financial
"inducement" for South Dakota to enact a higher drinking age rather
than
financial "compulsion" to do so--suggesting the possibility of a
different
result if a higher percentage of funds had been withheld. In
dissent,
Justice O'Connor argued that spending conditions should be found
constitutional
only if they related to how the federal grant dollars were to be spent.
In 1976, a
dispute over 19
wild burros rounded up on federal land and sold by New Mexico's
Livestock
Board reached the Supreme Court (New Mexico vs Kleppe).
The
Department of Interior argued the New Mexico's action violated the Wild
Free-Roaming Horses and Burros Act, while New Mexico countered that the
Act exceeded the power granted to Congress by the Property Clause of
Article
IV, Section 3. New Mexico contended that Congress could regulate
only those state actions on federal land that threaten to damage public
lands. The Court, however, rejected this narrow
interpretation.
Congress has the power to enact "needful" regulations "respecting" the
public lands and--according to the Court---what is a "needful"
regulation
is a decision "entrusted primarily to the judgment of Congress."
The Court concluded the federal government "has a power over its own
property
analogous to the police power" of the states. The Court did "not
think it appropriate [in Kleppe]...to determine the extent to
which
the Property Clause empowers Congress to protect animals on private
lands."
Questions 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? COMMERCE CLAUSE QUESTIONS 8. The Constitution gives Congress the power to regulate commerce "among" the several states. Does that mean "between" the states, or could it also mean "among the people"--that is, even within a state? 9. What would have been the economic future of the United States if Gibbons had gone the other way? 10. Which of the two basic approaches to Commerce Clause analysis is better, the "empirical test" (e.g., "substantial effects") or the categorical approach that seeks to label effects as "direct" or "indirect" or activities as "local" or "national." What are the advantages and disadvantages of each approach? 11. Does the power to "regulate" commerce include the power to ban outright certain articles of commerce--such as lottery tickets, firecrackers, hand grenades, or marijuana? 12. Is taking a woman across state lines for immoral purposes "commerce"? (The Court thought so in a decision upholding the constitutionality of the Mann Act.) 13. Should the Court examine the motive of Congress in enacting legislation under its commerce power, or just analyze the connection of the regulation to interstate effects? In Hammer vs Dagenhart, the Court was influenced by its conclusion that Congress really legislated because it disapproved of child labor, rather than out of any genuine concern for how child labor was affecting the national economy or the dangers posed by articles produced by child labor. Should the motive of Congress been a factor? 14. N.L.R.B. vs Jones, along with U. S. vs Lopez years later, is generally considered one of the two key turning points in Commerce Clause jurisprudence. What makes it so? 15. Does the "cumulative effects" approach of Wickard represent a major expansion of the "substantial effects" test as employed previously? 16. After McClung and Heart of Atlanta Motel, could you imagine any eating establishment or motel that would be outside the reach of Congress's power under the Commerce Clause to enact civil rights laws prohibiting discrimination against patrons or guests? 17. Lopez and Morrison raise serious questions about the ability of Congress to enact laws providing federal punishment or federal remedies for conduct traditionally regulated under state criminal codes. Which of the following are likely to be upheld?: (1) a law making "carjacking" a federal crime? (2) a law making "drive-by shootings" a federal crime? (3) a law making it a federal crime to carry out any action designed to terrorize? (4) a law making child molestation a federal crime? (5) a law making child pornography a federal crime? 18. How does Congress distinguish, as Morrison requires it to do, between "what is truly national and what is truly local."? TAXING & SPENDING POWERS-- QUESTIONS 2. Do the Court's recent Commerce Clause decisions give reason to think the Court will also tighten up the Congress's use of its taxing and spending powers? 3. In South Dakota vs Dole, is it clear that South Dakota's lower drinking age jeopardized federal interests in the national highway program? If so, how substantially? 4. Could Congress condition the receiving of federal dollars to fight crime on a state's having enacted the death penalty? How--if at all--would such a condition differ from the condition upheld in South Dakota vs Dole? 5. What result in South Dakota vs Dole if South Dakota stood to lose all federal highway money if it didn't raise its drinking age? What if it stood to lose 30%? THE PROPERTY CLAUSE-- QUESTIONS 2. Does the Property Clause empower Congress to regulate private activities on private land that adversely effect public lands, such as air pollution from a nearby plant, bright lights from neon advertising, or noise from a racetrack? 3. Does Article IV, Section 3 give Congress the power to regulate any behavior of residents of U. S. Territories that it chooses to, provided no other provision of the Constitution is offended? For example, could the Violence Against Women Act provision invalidated in Morrison be enforceable in U. S. Territories (such as Guam or Puerto Rico), even though it can't be in the fifty states?
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