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ESTABLISHING SUPREMACY
• Supreme
• Implied Powers
• Commerce Clause
SUPREME
According to the Constitution
• According to Article VI Section 2 (the “Supremacy Clause”), the supreme law of the land is
o The U.S. Constitution
o Laws of the national government (when consistent with the Constitution)
o Treaties (when consistent with the Constitution)
• It was a struggle at the beginning. Could the federal courts even impose the Supremacy Clause
onto the states?
SUPREME
Martin v. Hunter’s Lessee (1816)
• Facts of the Case: (Read Agenda)
• Question: Does the appellate power of the Supreme Court extend to the Virginia courts?
• Decision:
o The Court rejected the claim that Virginia and the national government were equal sovereigns.
o Reasoning from the Constitution, Justice Story affirmed the Court’s power to override state courts
to secure a uniform system of law and to fulfill the mandate of the Supremacy Clause.
IMPLIED POWERS
Definition
• Article I, Section 8, Clause 18
• Powers exercised by Congress which are not explicitly given by the Constitution itself but
necessary and proper to execute the powers which are.
• AKA the Elastic Clause
IMPLIED POWERS
Definition
• Federalist No.33 (Hamilton):
• Anti-Federalist No.1 (“Brutus”):
“It is EXPRESSLY to execute these powers (Article I
Section 8) that the sweeping clause, as it has been
affectedly called, authorizes the national legislature to
pass all NECESSARY and PROPER laws. IF there is
anything exceptionable, it must be sought for in the
specific powers upon which this general declaration is
predicated… The propriety of a law, in a constitutional
light, must always be determined by the nature of the
powers upon which it is founded.”
“The powers given by this article are very
general and comprehensive, and it may receive
a construction to justify the passing almost any
law. A power to make all laws, which shall be
necessary and proper, for carrying into
execution, all powers vested by the constitution
in the government of the United States, or any
department or officer thereof, is a power very
comprehensive…”
What does Hamilton refer to as the “sweeping clause”?
How does Hamilton say the necessity and propriety of a law should be judged?
What warning does Brutus make about the Necessary and Proper Clause?
IMPLIED POWERS
McCulloch v. Maryland (1819)
• Facts of the Case: (See Agenda)
• Questions:
o Did Congress have the authority to establish the bank?
o Did Maryland law unconstitutionally interfere with congressional power?
• Decision:
o The Court held that Congress had the power to incorporate the bank and that Maryland could not tax
instruments of the national government employed in the execution of constitutional powers.
o Chief Justice John Marshall wrote, “Although, among the enumerated powers of government, we do not find the
word ‘bank,’… we find the great powers to lay and collect taxes to borrow money; to regulate commerce… let the
end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are
constitutional.”
 Writing for the court, Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly
outlined in the Constitution.
IMPLIED POWERS
McCulloch v. Maryland (1819)
• Facts of the Case: (See Agenda)
• Questions:
o Did Congress have the authority to establish the bank?
o Did Maryland law unconstitutionally interfere with congressional power?
• Decision:
o Marshall also wrote, “if any one proposition could command the universal assent of mankind, we might expect it to
be this – that the government of the United States, though limited in its power, is supreme within its sphere of action.”
o Further, the Court ruled that Maryland could not tax the national bank: “That the power to tax involves the
power to destroy… if the states may tax one instrument, employed by the [federal] government in the execution of its
powers, they may tax any and every other instrument… This was not intended by the American people. They did not
design to make their government dependent on the states.”
o Marshall also held that while states retained the power of taxation, “the constitution and the laws made in
pursuance thereof are supreme… they control the constitution and laws of the respective states, and cannot be
controlled by them.”
COMMERCE POWER
Definition
• Article I, Section 8, Clause 3
• Gives Congress the power “to regulate commerce with foreign nations, and among the several
states, and with the Indian tribes.”
COMMERCE POWER
Gibbons v. Ogden (1824)
• Facts of the Case: (See Agenda)
• Question: Did the state of New York exercise authority in a realm reserved exclusively to Congress, namely, the
regulation of interstate commerce?
• Decision:
o Chief Justice Marshall ruled in Gibbons’ favor, holding that the Constitution gave this power to Congress.
o In reaching its decision, the Court interpreted the Commerce Clause of the U.S. Constitution for the first time.
o The clause reads that “Congress shall have the power to regulate commerce… among the several states.” According
to the Court, the word “commerce” included not just articles in interstate trade but also the “intercourse” among
the states, including navigation.
o Next, the Court examined the clause’s phrase “commerce among the several States,” concluding the word “among”
means “intermingled with.” Accordingly, Congress’ power to regulate interstate commerce does not “stop at the
external boundary line of each State, but may be introduced into the interior.”
o The Court acknowledged that the Constitution did not expressly grant Congress the power to regulate navigation
on interstate waterways. But Marshall pointed out that all the states were connected by waterways and commerce
would be impossible without navigating them. Therefore, the power to regulate transporting goods on waterways
was “necessary and proper” for Congress to carry out its enumerated power to “regulate commerce… among the
several states.”
COMMERCE POWER
Gibbons v. Ogden (1824)
• Facts of the Case: (See Agenda)
• Question: Did the state of New York exercise authority in a realm reserved exclusively to Congress, namely, the
regulation of interstate commerce?
• Decision:
o In other words, Congress may pass any law that regulates commerce, so long as that commerce is not wholly
confined within a single state, and its power to regulate such commerce is absolute.
o If individual states had their own rules about commerce with other states, trade would be next to impossible. In fact,
one important purpose of replacing the Articles of Confederation had been to “rescue [the United States] from the
embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it
under the protection of a uniform law.” States could not set their own rule for commerce in ways which would not
interfere with the national government’s ability to carry out its power to establish uniform rules.
o Under this interpretation of the Commerce Clause, Congress clearly had the authority to regulate the commercial
steamboat route between New York and New Jersey. It was assumed that the licensing at of 1793 did this and that
the New York law in question was in conflict with it. Thus, the New York law was unconstitutional and New York’s
injunction against Gibbons was overturned. Gibbons was free to operate his steamships.
COMMERCE POWER
Gibbons v. Ogden (1824)
• Gibbons v. Ogden set the stage for future expansion of congressional power over
commercial activity and a vast range of other activities once thought to come within
the jurisdiction of the states.
• After Gibbons, Congress had preemptive authority over the states to regulate any
aspect of commerce crossing state lines. Thus, any state law regulating in-state
commercial activities (ex. workers’ minimum wages in an in-state factory) could
potentially be overturned by Congress if that activity was somehow connected to
interstate commerce (ex. that factory’s goods were sold across state lines).
• Indeed, more than any other case, Gibbons set the stage for the federal government’s
overwhelming growth in power into the 20th century.
COMMERCE POWER
Lochner v. New York (1905)
• Facts of the Case: (See Agenda)
• Question: Does the New York law violate the liberty protected by due process of the 14th
Amendment?
• Decision:
o The Court held that the act was unconstitutional and that the conviction of Lochner must be reversed.
o The Court construed the law as an absolute interference “with the right of contract between the employer
and employees,” then declared that “the general right to make a contract in relation to his business is part of
the liberty of the individual protected by the 14th Amendment of the Federal Constitution.”
o The 14th Amendment’s Due Process Clause prohibits states from depriving any person of life, liberty, or
property without due process of law. To the Court, the right to buy and sell labor through contract was a
“liberty of the individual” protected under the amendment.
COMMERCE POWER
Hammer v. Dagenhart (1918)
• Facts of the Case: (See Agenda)
• Question: Does the congressional act violate the Commerce Clause, the Tenth Amendment, or the
Fifth Amendment?
• Decision:
o The Court agreed with Dagenhart and struck down the Keating-Owen Act as unconstitutional.
o The Court held that while Congress has the power to regulate interstate commerce, “the manufacture of
goods is not commerce.”
o Furthermore, the Court reasoned, the Tenth Amendment made clear that powers not delegated to the
national government remained with the states or the people. The power “to regulate the hours of labor of
children in factories and mines within the states, is a purely state authority.”
o The Court noted that all states had some restrictions on child labor already. Even if states with very
restrictive child labor laws were at an economic disadvantage, Congress did not have the constitutional
power to impose uniform rules for the country.
COMMERCE POWER
Carter v. Carter Coal Company (1936)
• Facts of the Case: (See Agenda)
• Question: Does the United States Congress have the power, according to the Commerce Clause, to
regulate the coal mining industry?
• Decision:
o Majority:
 The Court ruled the act unconstitutional.
 The Court ruled that “commerce” is plainly distinct from “production.”
 Employing workers, setting wages and working hours, and mining coal were found to be part of the local process of
production, separate from any trade of goods that could be regulated under the Commerce Clause.
 In striking down the law, Justice Sutherland argued that “everything which moves in interstate commerce has had a
local origin. Without local production somewhere, interstate commerce… would practically disappear.”
COMMERCE POWER
Carter v. Carter Coal Company (1936)
• Facts of the Case: (See Agenda)
• Question: Does the United States Congress have the power, according to the Commerce Clause, to
regulate the coal mining industry?
• Decision:
o Minority:
 Justice Cordozo claimed that the price-fixing provision of the Coal Conservation Act was within Congress’ power
because it had a direct effect on interstate trade.
 Justice Hughes wrote in a separate opinion, agreeing with the other five justices that the act’s labor provision was
unconstitutional because it was poorly drafted and did not fall within Congress’ jurisdiction to regulate interstate
commerce but mainly side with Cordozo’s opinion and noted that the act’s labor and marketing provisions were not
dependent on one another.
COMMERCE POWER
West Coast Hotel v. Parrish (1937)
• Facts of the Case: (See Agenda)
• Question: Did the minimum wage law violate the liberty of contract as construed under the Fifth
Amendment as applied by the 14th Amendment?
• Decision:
o The Court ruled that the minimum wage law did not violate the Constitution’s 14th Amendment and Parrish
was entitled to damages.
o The 14th Amendment’s Due Process Clause provides that no state “shall deprive any person of life, liberty, or
property, without due process of law.”
o West Coast Hotel alleged that because the minimum wage law prevented employers and employees from
freely negotiating wages, it restrained “liberty” of contract without due process of law.
o In response, the Court flatly declared that the “Constitution does not speak of freedom of contract” and that
such a freedom is thus “a qualified, and not an absolute right” under the 14th Amendment. The Court argued
that while the 14th Amendment bans arbitrary deprivation of life, liberty, and property by the state, it does
not prohibit the states’ ability to “reasonably” regulate the terms of certain activities for the public good.
COMMERCE POWER
West Coast Hotel v. Parrish (1937)
• Facts of the Case: (See Agenda)
• Question: Did the minimum wage law violate the liberty of contract as construed under the Fifth
Amendment as applied by the 14th Amendment?
• Decision:
o The Court next ruled that though the law interfered with contractual freedoms between “adults,” it was now
reasonable – given changing social and economic conditions – for governments to set a floor. It was
constitutional because it reasonably regulated contracts to protect the health and welfare of workers.
o The Court noted that employers and employees were not equally “free” in negotiating contracts, since
employees often were constrained by practical and economic realities. This was found to be especially true
in the case of women. The Court ruled that the Constitution permitted the restriction of liberty of contract
by state law where such restriction protected the community, health, and safety, of vulnerable groups.
COMMERCE POWER
Southern Pacific Co. v. Arizona (1945)
• Facts of the Case: (See Agenda)
• Question: Was the Arizona law an unconstitutional burden on interstate commerce?
• Decision:
o Yes.
o The general rule is that the states do not have the authority to substantially impede the free flow of
commerce where the need for national uniformity in laws demand that the regulation be done at the national
level.
o This case clearly calls for a balancing of the state and federal interests. However, the findings show that the
increase in safety is small if at all. Also, if the length of trains is to be regulated, it must be done uniformly for
efficiency.
o Since the Arizona law is a substantial burden on commerce where a need for uniformity exists, it is
unconstitutional.
COMMERCE POWER
Heart of Atlanta Motel v. U.S. (1964)
• Facts of the Case: (See Agenda)
• Question: Did Congress, in passing Title II of the 1964 Civil Rights Act, exceed its Commerce Clause
powers by depriving motels, such as the Heart of Atlanta, of the right to choose their own customers?
• Decision:
o The Court held that the Commerce Clause allowed Congress to regulate local incidents of commerce, and
that the Civil Rights Act of 1964 passed constitutional muster.
o The Court noted that the applicability of Title II was “carefully limited to enterprises having a direct and
substantial relation to the interstate flow of goods and people…”
o The Court thus concluded that places of public accommodation had no “right” to select guests as they saw
fit, free from government regulation.
COMMERCE POWER
United States v. Lopez (1994)
• Facts of the Case: (See Agenda)
• Question: Is the 1990s Gun-Free School Zones Act, forbidding individuals from knowingly carrying a
gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the
Commerce Clause?
• Decision:
o Yes.
o The possession of a gun in a local school zone is not an economic activity that might, through repetition
elsewhere, have a substantial effect on interstate commerce.
o The law is a criminal statute that has nothing to do with “commerce” or any sort of economic activity.
COMMERCE POWER
United States v. Morrison (2000)
• Facts of the Case: (See Agenda)
• Question: Does Congress have the authority to enact the Violence Against Women Act of 1994 under
either the Commerce Clause or the 14th Amendment?
• Decision:
o No.
o The Court held that Congress lacked the authority to enact a statute under the Commerce Clause or the
14th Amendment since the statute did not regulate an activity that substantially affected interstate commerce
nor did it redress harm caused by the state.
o Chief Justice Rehnquist wrote for the Court that “if the allegations here are true, no civilized system of
justice could fail to provide Brzonkala a remedy for the conduct of… Morrison. But under our federal
system that remedy must be provided for by the Commonwealth of Virginia, and not by the United States.”
COMMERCE POWER
Printz (Mack) v. United States (1997)
• Facts of the Case: (See Agenda)
• Question: Using the Necessary and Proper Clause of Article I as justification, can Congress
temporarily require state chief law enforcement officers to regulate handgun purchases by performing
those duties called for by the Brady Bill’s handgun applicant background checks?
• Decision:
o No.
o The Court constructed its opinion on the old principle that state legislatures are not subject to federal
directions.
o The Court explained that while Congress may require the federal government to regulate commerce directly,
in this case, by performing background checks on applicants for handgun ownership, the Necessary and
Proper Clause does not empower it to compel state chief law enforcement officers to fulfill its federal tasks
for it – even temporarily.
CONCLUSION
• The Supremacy Clause, as stated in Article VI Clause 2, states the supremacy of the national
government.
• However, the acceptance of the national government’s supremacy was established through
various Supreme Court cases.
• While not always successful, the national government established its supremacy through the
Implied Powers Clause and the Commerce Clause.