The Scope of National Power

1. Theory of enumerated federal power

   1. Congress may act only when there is express or implied authority to act in the Constitution.

      1. 10th amendment: US is a government of limited power

      2. The fact of enumeration in Art. I indicates that the government has limited power

   2. Constitutional requirement for federal legislation

      1. Is the legislation within at least one of the enumerated powers, i.e. A. I §8?

      2. Does the statute violate some constitutional constraint, in particular an individual right, i.e. Amend. 1-10, A. I §9?

2. State power

   1. Only the state has police power that allows the state to adopt any law not prohibited by the constitution

3. Reasons for federal regulations (instead of State regulation)

   1. interstate externalities (pollution)

   2. state protectionism

   3. unfair competition: State race the bottom “Prisoner’s dilemma”

   4. uniformity

   5. effectiveness in federal enforcement

Commerce Clause

1. Art. I § 8 “Congress shall have the power… [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes….”

2. Why is CC the main source of federal regulatory power

   1. Cl. 1 is not a general welfare power, so Congress needs to regulate this issue through the commerce clause.

      1. A. I §8 cl. 1

         1. Wide reading: Provide for general welfare (if cl.1 is wide, the rest of A. I is meaningless)

         2. Narrow reading: tax and spend so as to provide for the general welfare

3. Varying views regarding the Commerce Clause

   1. Initially, Gibbons, the SC adopted an expansive view of the scope of the commerce clause.

      1. The power to regulate interstate commerce is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the constitution.

      2. Activity outside commerce power if it’s an intrastate activity, AND does not extend to or affect other states.

      3. Activity inside commerce power if it’s interstate activity, OR affects other states.

   2. Pre-1937 cases: The predominant approach during the early twentieth century used formalistic doctrine to limit the power of the federal government to regulate under the Commerce Clause.

3. 1937-1995: more expansive view of the Commerce Clause

   1. National Labor Relations Board v. Jones & Laughlin: Congress can regulate any activity that has a significant effect on interstate commerce whether direct or indirect.

   2. United States v. Darby: Fair Labor Standards Act. Substantial effect test: Congress’s power to regulate interstate commerce extends to those intrastate activities that affect interstate commerce.

   3. Wickard v. Filburn: Aggregation principle: does the class of activities regulated have substantial effect on interstate commerce?

4. After 1995, since Lopez, SC struck down some federal statutes. The modern CC is:

   1. Congress may regulate under CC (Lopez):

      1. channels of interstate commerce (Direct effect);

      2. instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities (stream of commerce: destruction of aircraft, theft from interstate shipment, Southern Railway); and

      3. activities that have a substantial effect interstate commerce: substantial effect(Darby) + Wickard aggregation + rational basis (Raich)

         1. rational basis for finding such activity affects commerce+ commercial: likely to uphold

         2. rational basis + noncommercial: more suspicious

   2. For non-commercial activities, may regulate if

      1. Jurisdictional element: no possession of gun that has moved interstate (Atlanta motel, restaurant purchase food from interstate)

      2. Essential part of a statute that regulates economic activity

      3. findings that the activities affect interstate commerce

      4. Activities rather than inactivities (Sebelius)

Taxing Power

1. Art. I § 8 “Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States, but all duties, imposts and excises shall be uniform throughout the United States. ”

2. Congress has broad authority to tax and spend for the general welfare. (Butler)

3. Objective test: do not examine subjective motive

   1. Does it really raise some revenue? Very lenient test

      1. Regulatory tax rather than revenue is unconstitutional (Bailey, Wallace, Constantine)

   2. Are provisions extraneous to any tax need?

4. Specific constraints on taxes:

   1. direct taxes (limited to real property tax) must be apportioned. Art. I §9, Amendment 16

   2. taxes must be uniform

Spending Power

1. Art. I § 8. Broad power (Butler)

2. Test: restrictions to the spending power:

   1. the exercise of the spending power must be in pursuit of the general welfare. (defer to the judgment of Congress) = is there good reason for federal spending (Adler)?

   2. if Congress desires to condition the State’s (NOT individual’s) receipt of federal funds, it must be clear. (Individual’s condition can be ambiguous).

   3. Germaneness. Related to the federal interest in particular national projects or programs. Assign a purpose to a statue, and test if the spending is related to this purpose.

   4. Other constitutional provisions may provide an independent bar to the conditional grant of federal funds.

3. Coercion can be found if

   1. When there...

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