Chapter III
Powers of the National
Government
A Useful Distinction

Allocation of Constitutional Authority Among
the Branches

Vesting of Constitutional Power in the National
Government
A Useful Distinction

Allocation of Constitutional Authority Among
the Branches

Congress




Executive




Legislate
Impeach
Advice & Consent
Laws be Faithfully Executed
Commander in Chief
Negotiate Treaties
Judicial

Judicial Review
A Useful Distinction

Vesting of Constitutional Power in the National
Government
Enumerated Powers
 Implied Powers of Nationhood

Enumerated Powers:
Article I, § 8
Congress shall have Power to:
 Tax & spend for the general welfare
 Borrow money
 Regulate interstate & foreign commerce
 Establish rules for naturalization & bankruptcy
 Coin money & adopt standards for weights & measures
 Punish counterfeiting
 Establish post offices & post roads
 Provide for copyrights & patents
 Constitute tribunals inferior to the Supreme Court
Enumerated Powers:
Article I, § 8
Congress shall have Power to:
 Define & punish piracies, felonies on the high seas and
offences against the law of nations
 Declare war, grant letters of Marque and Reprisal &
make rules concerning captures on land and water
 Raise and support armies
 Provide & maintain a navy
 Provide for a militia
 Exercise authority over seat of government
See also Article IV, § 3: Territories & property of US
Enumerated Powers:
Enforcement Powers in Civil Rights Amendments






Amendment XIII: Slavery prohibition
Amendment XIV: Due process, equal
protection, privileges or immunities, citizenship
Amendment XV: Race & voting
Amendment XIX: Gender & voting
Amendment XXIV: Poll tax prohibition
Amendment XXVI: Age & voting
McCulloch v. Maryland (1819)

Basic facts:
Congress establishes the Second Bank of the United
States (a central bank).
 State of Maryland imposes a tax on the Bank.
 McCulloch, Treasurer of the Baltimore branch of
the Bank refuses to pay tax.
 McCulloch is convicted of violating the state law.
 Maryland Court of Appeals affirms his conviction &
upholds the constitutionality of the state law.

McCulloch v. Maryland (1819)

Is McCulloch’s claim justiciable?

In determining whether McCulloch’s conviction
should be affirmed, what basic issue must the
Court resolve?
McCulloch v. Maryland (1819)

Does the incorporation of a bank come within
the enumerated powers of Congress (i.e., of the
United States)?
Definitional problem?
 Structural problem?
 External problem?


If the answer to that question is “yes”, what
follows from that answer?
McCulloch v. Maryland (1819)
“[The] government of the United States, then,
though limited in its powers, is supreme; and its
laws, when made in pursuance of the
constitution, form the supreme law of the land,
‘anything in the constitution or laws of any state
to the contrary notwithstanding.” (page 128)
WHAT DOES THIS MEAN?
McCulloch v. Maryland (1819)



Is there an enumerated power to create a
national bank? To create corporations generally?
If there is no specific power, does Marshall rely
on an implied power?
What does he focus on in terms of the
definitional scope of powers vested in the
national government? (pages 128-129)

How would you characterize this argument?
McCulloch v. Maryland (1819)
The Necessary & Proper Clause:
“To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this
Constitution in the Government of the United
States, or in any Department or Officer
thereof.”
McCulloch v. Maryland (1819)


What is Maryland’s argument with respect to the
Necessary & Proper Clause?
What is Marshall’s response?

Note his interpretive techniques.
Logic
 Text close focus
 Text comparative
 Text location
 Text apparent operation
 Consequences

McCulloch v. Maryland (1819)

Who decides whether the means adopted by Congress
fall within the scope of the Necessary and Proper
Clause?

What standard of review?
“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.” (page 131)
Enumerated Powers




Art. I, § 8
Art. IV, § 3
Civil Rights Amendments
Necessary & Proper Clause

Pertains to Authorities & Powers
McCulloch v. Maryland
(Part II)

Part II is premised on the validity of the
congressional creation of the Second Bank of
the United States.

Question in Part II: May the State of Maryland
impose a tax on a branch of the Bank?
McCulloch v. Maryland
(Part II)

The power to tax is said to be “concurrent.”
What does this mean?

Does anything in the Constitution or the charter
of the Bank expressly prohibit states from
imposing a tax on a federal instrumentality?
McCulloch v. Maryland
Marshall’s Axiom:
“[The US] constitution and the laws made in
pursuance thereof are supreme; that they
control the constitution and laws of the
respective states, and cannot be controlled by
them.”
McCulloch v. Maryland
Marshall’s Corollaries:
“1st. That a power to create implies a power to
preserve; 2d. That a power to destroy, if wielded
by a different hand, is hostile to and
incompatible with these powers to create and to
preserve; 3d. That where this repugnancy exists,
that authority which is supreme must control,
not yield to that over which it is supreme.”
McCulloch v. Maryland

Is the state’s power to tax incompatible with the
national government’s power to create and preserve the
Bank of the US?

“The only security against the abuse of this power [to
tax] is found in the structure of the government itself.”
?????

Why doesn’t the previous principle sustain the state’s
power here?
McCulloch v. Maryland

What generic type of constitutional argument is
Marshall engaging in?
Definitional
 Structural
 External



Federalism & Supremacy
Compare constitutional vision of Marbury with
vision of McCulloch
U.S. Term Limits, Inc. v. Thornton
(1995)


Amendment 73: How does it operate?
Two questions presented
Does the Constitution forbid States from adding to
or altering the “qualifications” provided in the
Constitution?
 If so, does Amendment 73 violate this principle?

U.S. Term Limits, Inc. v. Thornton
(1995)

Three constitutional issues:
The Elections Clause
 The Tenth Amendment
 The Qualifications Clause


Compare the majority & the dissent

Which opinion reflects McCulloch & which rejects it
or at least adopts a more restrained view of it?
The Commerce Power
A Definitional Problem:
 What
 Does
is the scope of the commerce power?
the action being challenged fall within
that defined scope?
The Text: Art. I, § 8, cl. 3
“Congress shall have the Power To . . .
Regulate Commerce with foreign
Nations, and among the several states,
and with the Indian Tribes.”
Chief Justice Marshall




Marbury v. Madison
Martin v. Hunter’s Lessee (recused)
McCulloch v. Maryland
Gibbons v. Ogden
Gibbons v. Ogden (1824)
New Jersey
New York
Gibbons v. Ogden (1824)




Ogden – Exclusive Right (NY)
Gibbons – License (US)
NY Courts rule for Ogden & enjoin Gibbons
Appeal to US Supreme Court
Marbury v. Madison
 Martin v. Hunter’s Lessee
 McCulloch

Gibbons v. Ogden (1824)
Two potential issues of constitutional law:
Definitional
Structural
What is the “definitional” issue stated in terms of
this particular controversy?
Gibbons v. Ogden (1824)

Commerce


What is it?
Among the several States
What is included?
 What is excluded? (Reserved to the states.)


Regulate

Who decides?
Gibbons v. Ogden (1824)
Was the grant of the federal “coastal”
license a valid exercise of the commerce
power? Why?
How would you describe the defined
scope of the Commerce Clause after
Gibbons?
Post-Gibbons & Pre-New Deal

The problem of state power over internal
commerce:
Supremacy
 Concurrent authority


The “enclave” theory:
From “concurrent” to exclusive
 The Tenth Amendment
 Hammer v. Dagenhart

Post-Gibbons & Pre-New Deal

Emerging theories
Stream of commerce
 Protective power
 Commerce-Prohibiting
 Direct & Indirect

NLRB v. Jones & Laughlin Steel Corp.
(1937)


NLRA grants employees of businesses affecting
ISC the right to engage in collective bargaining
NLRB finds that J&L engaged in unfair labor
practices as defined by the NLRA
Discriminated against union members (fired them)
 Engaged in anti-union coercion of employees


Cease & desist order issued
NLRB v. Jones & Laughlin Steel Corp.
(1937)

J&L argue:

NLRA not a valid exercise of the commerce power


Beyond the defined scope of the power
Impermissible regulation of labor & production
Manufacturing is not “commerce”
 Reserved powers – state enclave


Note: FDR was in his second term, but had
appointed no members to the Court.
NLRB v. Jones & Laughlin Steel Corp.
(1937)

Court’s response
Affecting commerce rationale
 Stream of commerce
 Enclave theory
 Direct & Indirect


Compare the law of “Personal Jurisdiction”
NLRB v. Jones & Laughlin Steel Corp.
(1937)

What is the defined scope of the ISC power
after Jones & Laughlin? In other words, how
would you measure the constitutionality of an
exercise of the ISC power?
United States v. Darby (1941)

By 1941, FDR had appointed 8 of the 9 sitting
Justices; the only non-FDR appointee was
Justice Roberts who had been the “swing” vote
in Jones & Laughlin.
United States v. Darby (1941)

Fair Labor Standards Act
Prohibits the shipment in ISC of goods produced
under “substandard” labor conditions (minimum
wage & maximum hours)
 Prohibits substandard labor conditions
manufacturers whose products are intended for
shipment in ISC

United States v. Darby (1941)

Prohibition on Shipment in ISC
On what basis does Darby challenge this measure?
 On what grounds does the Court reject that
challenge?
 Enclave theory? (Hammer v. Dagenhart)
 What is the defined scope of the ISC power with
respect to the interstate shipment of goods or
services? Any checks on that power?

United States v. Darby (1941)

Regulation of labor conditions:
On what basis does the Court conclude that this
regulation falls within the defined scope of
congressional power? (There are two separate
rationales.)
 What role does the Tenth Amendment play
(reserved powers doctrine)?

United States v. Darby (1941)

What is the defined scope of the ISC power
post-Darby?

Hint: It’s a two-part test.
Wickard v. Filburn (1942)

Facts:
AAA imposes annual quotas on amount of wheat a
farmer may grow.
 Nationwide there are 16 “overproducing states” and
32 “underproducing” states
 Filburn’s allotment: 11.1 acres
 He sows 23 acres (239 additional bushels)



Presumably to be consumed on farm
$117 fine imposed
Wickard v. Filburn (1942)


Does the regulation imposed by the AAA
represent a constitutional exercise of the power
over ISC? Does it fall within the defined scope
of that power?
Filburn argues:
Regulation of production and consumption
 Indirect effects

Wickard v. Filburn (1942)

The Court:
Production?
 Indirect?
 What is the measure of the ISC power?
 How does one measure the sufficiency of an effect
on ISC?
 How does “on-farm” consumption effect ISC?
 Isn’t Filburn’s contribution to the effect trivial?
 Primary restraint on ISC power?

The Civil Rights Cases (1964)

CRA of 1964 prohibits racial discrimination by private
persons in public accommodations.



Cf. Fourteenth Amendment enforcement power &
requirement of state action.
Heart of Atlanta Motel v. US: Court upholds application
of CRA to private hotel that serves interstate travelers.
Katzenbach v. McClung: Court upholds application of
CRA to local restaurant that sells food purchased in
ISC.
U.S. v. Lopez (1995)


Gun-Free School Zones Act of 1990
Begins with the premise of enumerated powers.


“Few and defined”
Recites a brief history of Commerce Clause
Jurisprudence, ends with emphasis on outer
limits of that power.
U.S. v. Lopez (1995)

Commerce Power:

The channels of ISC
Anything that is itself ISC
 Example: the sale of goods interstate


The instrumentalities of ISC
Anything being used to facilitate ISC
 Example: interstate railroads


Activity that “substantially” affects ISC
U.S. v. Lopez (1995)



What aspect of the “test” is at issue in Lopez?
What is the government’s argument in support
of constitutionality?
Why doesn’t the GFSZA pass the test?
Nature of the activity
 Lack of jurisdictional nexus
 Lack of findings
 Attenuated chain of inferences

U.S. v. Lopez (1995)



What does Justice Thomas suggest in his
concurring opinion?
What is the theme of the of Justices Souter’s
dissent? Justice Breyer?
What is the current standard of review when
Congress seeks to regulate something that
substantially affects ISC?
U.S. v. Morrison (2000)

Violence Against Women Act
Creates civil remedy for crimes of violence
motivated by gender
 Congress makes findings that gender-based violence
has a significant impact on the national economy


Majority: “Gender-motivated crimes of violence
are not, in any sense of the phrase, economic
activity.”

Categorical rule?
Gonzales v. Raich (2005)




The Controlled Substances Act prohibits the
production, possession & sale of marijuana
(etc.). It applies to interstate and intrastate
transactions.
Is the CSA constitutional as applied to intrastate,
noncommercial cultivation and personal use of
medical marijuana?
Wickard?
Apply Lopez & Morrison.
State Sovereignty



Structural Concern
Tenth Amendment
Scope of the Limitation
Garcia v. San Antonio Met. Transit
 NY v. US
 Printz v. US



Compare Lopez & Morrison
Note: Potential External Limits on the ISC
power
The Power to Tax & Spend:
The General Welfare Clause
“Congress shall have the Power to lay and collect
Taxes, Duties, Imposts and Excises to pay the
Debts and provide for the common Defence and
general Welfare of the United States.” Art. I, § 8
Taxing: Definitional Scope


“Some Revenue Test”
Penal or Prohibitory
SRT creates strong presumption against
 Regulatory effect inadequate
 Motives of Congress generally irrelevant
 Scope of Child Labor Tax Case & US v. Constantine


Hypothetical: Gun-Free School Zones Tax
Taxing: Structural Limits


Separation of Powers
Federalism (State Sovereignty)
Must be nondiscriminatory
 May not impair traditional state function


Exception: recovery of costs of federal program
Taxing: External Limits


Uniformity Clause
Direct Taxes & Proportionality



Sixteenth Amendment
Prohibition on Taxes or Duties Laid on Exports
Bill of Rights, etc.
The Power to Spend
“The Congress shall have Power . . . to pay the
Debts and provide for the common Defence
and general Welfare of the United States.” Art.
I, § 8
Spending: Definitional Scope

Nature of the Power





Subsidiary (Madison)
Independent (Hamilton)
Modern View (US v. Butler)
Note: Incidental spending
Defined Scope of the Power

Expenditure




To pay debts of the US;
To provide for the common defense; or
To provide for the general welfare.
Courts “defer substantially” to Congress

South Dakota v. Dole
Spending: Structural Limits

Separation of Powers
Hypothetical: Congress refuses to fund the war in
Iraq
 Hypothetical: Congress appropriates $ to create a
division of the armed forces not subject to
presidential control

Spending: Structural Limits

Federalism (State Sovereignty)
Enclave Theory (US v. Butler)
 Conditional Spending (SD v. Dole)
 Spending & the Necessary and Proper Clause


Provisions designed to protect the disbursed federal funds
South Dakota v. Dole (1987)


Spending: Federal highway funds provided to
the states.
Condition: 5% reduction in funds if the state
permits persons under 21 years of age to
purchase or possess alcoholic beverages.
Does the condition violate the principle of
federalism?
South Dakota v. Dole (1987)


Note reaffirmation of the “Hamiltonian”
model.
May Congress impose conditions on states
that receive federal monies? Yes, if:
1.
2.
3.
4.
?
?
?
?
Spending: Structural Limits

Federalism (State Sovereignty)
Enclave Theory (US v. Butler)
 Conditional Spending (SD v. Dole)

Condition must be unambiguously stated
 Condition must be related to the spending program
 Condition may not be coercive


Spending & the Necessary and Proper Clause

Provisions designed to protect the disbursed federal funds
Spending: External Limits

Bill of Rights, etc.

Coercion of states to violate individual rights


South Dakota v. Dole
Unconstitutional Conditions Doctrine
The Treaty Making Power
(Art. II, § 2 )

Constitutional authority to enter treaties is
shared between the President & the Senate
President: Formation & Negotiation
 Senate: Advice & Consent (2/3 vote)


The “treaty power” validates a particular method
through which law can be made
Note the location of the “power”
 Compare the Commerce Power

The Treaty Making Power
(Art. II, § 2 )

Two types of treaties (for purposes of
constitutional law):
Self-executing
 Non-self-executing




Treaties and the Supremacy Clause
Treaties and Federal Statutes
Treaty Power: Process v. Substance
Treaty Power: Definitional Scope

To what subject matters may the treaty power be
applied? (The Defined Scope)
Missouri v. Holland (1920)
 Any matter requiring national action in concert with
other nations? Any matter of international concern?



A subsidiary power or an independent power?
Scope of the congressional power to implement
As broad as the power itself ? (Missouri v. Holland)
 Hypothetical: VAWA Treaty

Treaty Power: Structural Limits

Separation of Powers
Note the shared nature of the power reflects a
separation of powers concern
 Chapter 5 (further exploration)


Federalism
Enclave theory? (Missouri v. Holland)
 Anti-commandeering principle?

Treaty Power: External Limits


Is a treaty superior to the Constitution?
Potential external limits include:
Bill of Rights
 Article I external limits on the power to tax
 Ban on ex post facto laws, bills of attainder
 Protection of habeas corpus

The Power to Make War

Article I, § 8 vests Congress with the power to:
Tax & spend for the common defense
 To declare war
 To raise & support armies
 To provide & maintain a navy
 To provide for organizing, arming, and discipling,
the militia (National Guard)
 Necessary & Proper Clause

The Power to Make War

Article II, § 2 provides:
“The President shall be the Commander in Chief of
the Army and Navy of the United States, and of the
Militia of the several States, when called into the
actual Service of the United States….”
War Power: Definitional Scope


The power may be exercised both domestically and
internationally.
The power to prosecute war successfully embraces the
following possibilities:





Preparation for the possibility of war
Action undertaken to prevent war
Waging war
Ending war
Ameliorating the effects of war (Woods v. Cloyd W. Miller Co.)
War Power: Structural Limits

Separation of Powers

The congressional power to declare war v. the
presidential power as commander-in-chief


Chapter 5
Federalism
Enclave theory? (Woods v. Cloyd W. Miller Co.)
 Anti-commandeering principle?

War Power: External Limits

Potential external limits include:
Bill of Rights
 Ban on ex post facto laws, bills of attainder
 Protection of habeas corpus


The potential leveling effect of war:
Korematsu v. United States
 The Pentagon Papers Case

The Fourteenth Amendment
Enforcement Power

Section 5 of the 14th Amendment vests
Congress with the power to “enforce” the
substantive provisions of the amendment:
US & state citizenship defined
 Privileges or Immunities of US citizenship
 Due Process
 Equal Protection



“Congruence” and “Proportionality”
See also: 13th, 15th, 19th, 24th & 26th (Slide 7)