CHAPTER 4 CONGRESS AND ITS POWERS Outline I. Introduction A. The United States is a federalist system 1. The national government and the governments of each state coexist 2. These two share power B. The federal government has limited powers 1. Enumerated powers 2. The three branches of the federal government have specifically granted power under the Constitution C. Specific enumerated power is given to Congress in Article I, sec. 8; Congress can: 1. Lay and collect taxes 2. Provide for the defense of the country 3. Borrow money for the country 4. Regulate commerce with foreign nations and among the states 5. Regulate immigration and bankruptcy 6. Establish post offices 7. Control the issuance of patents and copyrights 8. Declare war 9. Pass laws to govern Washington D.C. and federal military bases D. In addition to specific powers granted to Congress, the Necessary and Proper Clause extends these powers so that the enumerated powers can be carried out 1. This clause was not debated during the Constitutional Convention, but was a major issue during the ratification process that followed a. Opponents saw this clause as a way to endlessly expand the specific enumerated powers given to Congress in Article I b. Defenders of this clause declare it harmless, claiming that without it there would be no way for Congress to implement the enumerated powers 2. If Congress has an objective that falls within a specific enumerated power, Congress may use any means that is rationally related to the objective being sought so long as it is not constitutionally forbidden 3. The Necessary and Proper Clause says: Congress shall “[m]ake 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 . . .” E. Other parts of the Constitution provide additional grants of power to Congress, such as 1. Article III, sec. 2 gives Congress the power to control the Supreme Court’s jurisdiction and establish all lower federal courts 2. Article IV, sec. 3 gives Congress power over U.S. territories and federal property 3. Various amendments give Congress some power, i.e., sec. 5 of the Fourteenth Amendment to enact supporting legislation II. The Commerce Clause A. Gibbons v. Ogden, 22 U.S. 1 (1824) was the first major case to interpret the Commerce Clause and congressional power to regulate in that area 1. This case contains an interpretation of the broad, sweeping powers of Congress 2. Justice Marshall wrote the opinion and said that Congress can legislate with respect to all “commerce which concerns more States than one”; also, Justice Marshall

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noted that “commerce” included not only the buying and selling but also all “commercial intercourse” a. Congressional power to regulate interstate commerce includes the ability to affect matters occurring within a state, so long as the activity has some commercial connection with another state b. However, the regulation of a commercial enterprise that is confined to one state may be considered reserved for the state in which the commercial endeavor takes place 3. No area of interstate commerce is reserved for state control and the Tenth Amendment to the Constitution does not act as a limit on the congressional power to regulate interstate commerce B. In Mayor of the City of New York v. Miln, 36 U.S. 102 (1837), the Court followed Gibbons, in which Marshall defined commerce power broadly, but since Gibbons did not say that Congress’ regulatory power was exclusive, that question was left for the Court to decide here 1. Miln focused on the conflict between Congress’ commerce power and the Tenth Amendment 2. New York won in this case, as the Court held that the state has a right to regulate for the health, safety, and welfare of its citizens, and that was what the law in question did 3. This holding led to some confusion and set up a conflict that the Court resolved in the next case C. Cooley v. Board of Wardens, 53 U.S. 200 (1851): This case involved a Pennsylvania statute that required that all riverboats must have a pilot in order to dock in one of the state’s ports; failure to do so resulted in payment of a fee 1. Cooley arrived without a pilot at the Port of Philadelphia and the Board of Wardens sued him to recover the fee due under the statute 2. The magistrate ruled for the Board and ordered Cooley to pay; Cooley appealed 3. Issue: Did the commercial power granted to Congress deprive the states of the power to regulate in this area? a. The Court held that the power granted to Congress did not expressly exclude state regulation, but the Court went on to discuss whether the Constitution ought to be interpreted to give Congress this exclusive power b. The Court did not give a clear answer in this discussion and left the door open for future cases D. Hammer v. Dagenhart, 247 U.S. 251 (1918): 1. The Court has taken a more negative view of congressional interference with the employer-employee relationship 2. The Court was unwilling in this case to allow congressional legislation that interfered with the free-market system 3. The Court voted 5–4 to strike down a federal statute that prohibited the interstate transportation of articles produced by companies that employed young children 4. The Court said the goods being shipped were in and of themselves harmless and it was the child labor that was the evil; the employment of children was not directly related to interstate commerce and Congress could not use its power to regulate interstate commerce to get at the evil of child labor 5. Justice Holmes dissented and this is perhaps the more important part of this case in light of later legislation to eradicate child labor a. The dissent stated that so long as the congressional regulation falls with the power specifically given to Congress, the fact that it has a collateral effect upon local activities otherwise left to the state does not render the statute unconstitutional b. Justice Holmes also rejected the Tenth Amendment as a limitation on federal authority and said that so long as the congressional action technically comes from an enumerated power, it is valid no matter how substantially it impairs state regulation c. This restrictive view of the Tenth Amendment later became the majority view that exists to the present 22 Chapter 4

E. U.S. v. Darby, 312 U.S. 100 (1941), expressly overruled Hammer v. Dagenhart 1. In this case the Court upheld the Fair Labor Standards Act of 1938, which set minimum wages and maximum hours for employees engaged in the production of goods for interstate commerce a. The statute prohibited shipment in interstate commerce of goods made by employees working more than the maximum hours or who were not paid the minimum wage b. The statute also made it a federal crime to employ workers in the production of goods for interstate commerce at other than the prescribed rates or for the hours c. The Court upheld the direct ban in interstate shipments by saying “[t]he power of Congress over interstate commerce [can] neither be enlarged nor diminished by the exercise or non-exercise of state power . . . The [Tenth Amendment] states but a truism that all is retained which has not been surrendered” d. The Court held that the Tenth Amendment would no longer act as an independent limitation on congressional authority over interstate commerce e. As a result of Darby, Congress is completely free to impose whatever conditions it deems necessary upon the privilege of engaging in an activity that substantially affects interstate commerce, so long as the conditions do not violate another constitutional prohibition f. The Court also held that Congress’ motive for passing such legislation is not relevant to the discussion of this congressional power g. The Court also made it clear that making a violation of the act a crime was rationally related to the ends the federal government was attempting to achieve through this statute F. U.S. v. Lopez, 514 U.S. 549 (1995), demonstrates that some limits still exist on Congress’ Commerce Clause powers 1. This was the first case in 60 years where the Court invalidated a federal statute on the grounds that it was beyond Congress’ commerce power 2. The case involved the Gun-Free School Zone Act of 1990, which made it a federal crime for individuals to possess a firearm at a place that the individual knows or has reasonable cause to believe is a school zone 3. Congress based its power to enact and enforce this statute on the Commerce Clause, but there was no finding that the activity being regulated affected commerce, and it banned possession of all guns, even ones that had never traveled in or affected interstate commerce 4. The Court struck this statute down and restated that it is not enough to just affect interstate commerce—the activity must substantially affect interstate commerce 5. The Court further held that the possession of a gun in a school zone had not been demonstrated to substantially affect commerce a. First, the activity being regulated was not a commercial activity b. The government’s argument that the affect on commerce came from the fact that these guns could be used to commit a crime and crime has a negative impact on commerce was not persuasive enough to convince the Court that this was a substantial impact c. To do as the government argued would be to convert Congress’ authority under the Commerce Clause to a general police power of the type that was reserved for the states G. Following Lopez, the Court heard U.S. v. Morrison, 529 U.S. 589 (2000), in which the federal government attempted to regulate violence against women by use of the Violence Against Women Act of 1994, 42 U.S.C. §13981 1. This statute gave the victim of gender-based violence standing to bring a civil action in federal court against the perpetrator of the crime; Congress believed it had the power to do so based on the Commerce Clause 2. A female student who claimed to have been raped by two members of the university’s football team sued Virginia Technological University 3. The university challenged the statute, claiming that Congress had exceeded its authority under the Commerce Clause Congress and Its Powers 23

4. The 5–4 decision agreed with the university and held that the statute was beyond Congress’ commerce power a. Specifically, the Court held that the activity being regulated was noneconomic in nature b. The Court reached this holding in spite of detailed findings by Congress showing the effect that sexual violence had on interstate commerce; the Court said: “If accepted [this] reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence . . .” H. What is the significance of Lopez and Morrison? 1. The effect on interstate commerce must be significant—it is not enough that the activity affects interstate commerce, but must substantially affect it; therefore, an incidental effect on commerce is not enough to allow Congress to use its power to regulate under the Commerce Clause 2. If the activity is commercial, then it is something that can be regulated by Congress 3. If the activity is not commercial, Congress will have to establish an obvious connection between the regulated activity and interstate commerce a. Congress was not able to do so in either Lopez or Morrison b. The Court will give little deference to Congress if it believes that Congress is attempting to use its commerce power in a way not mandated by the Constitution c. If the federal statute covers a topic traditionally the domain of the states, the Court is less likely to find that Congress is acting within its commerce power III. Implied Powers and the Expansion of Legislative Power A. Doctrine of implied powers: 1. The federal government may act only where it is affirmatively authorized to do so 2. The authorization does not have to be explicit 3. Using the doctrine of implied powers, the federal government may validly exercise power that is ancillary to one of the powers specifically enumerated in the Constitution, so long as the ancillary power does not conflict with specific constitutional prohibitions B. The doctrine of implied powers is explicitly stated in the Necessary and Proper Clause of Article I, sec. 8: 1. Congress may “make all laws which shall be necessary and proper for carrying into Execution” the specific legislative powers granted by the Constitution C. The first case to interpret “necessary and proper” was McCullough v. Maryland, 17 U.S. 316 (1819) 1. This case involved an anti-banking statute passed by Maryland and imposed a tax upon all banks operating in that state that were not chartered there 2. Maryland brought suit challenging the federally created banks and made an attempt to collect the tax imposed by statute 3. The Court held the tax to be unconstitutional and further held that the federal government constitutionally chartered the bank 4. In discussing the congressional power to create the bank, the Court noted that this was not an explicitly given power, but was a power implied from other, explicit grants of power 5. The Court said, “A constitution, to contain an accurate detail of all the subdivisions of which its great power will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind . . . [W]e must never forget that it is a constitution we are expounding” a. So, Congress has the power to create a corporation or bank so long as it is incidental to carrying out one of the constitutionally mandated powers, which in this case is raising revenue b. In so holding, the Court relied on the Necessary and Proper Clause to justify the decision 24 Chapter 4

c. The Court rejected the idea that necessary meant “absolutely necessary” and defined necessary as “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, with the letter and spirit of the constitution, are constitutional” d. The Court used the rational relationship test and found that the creation of the bank was rationally related to the specific constitutional objective e. Justice Marshall supported the decision and also discussed the concept of separation of powers as a means of justifying the federal government’s action (1) He noted that the Court can only strike down legislation where it is quite clear that no constitutionally specified object is being pursued (2) He also noted that the final decision about the course of action to pursue should be left to Congress 6. What is the modern impact of McCullough? a. The impact of the case is still felt b. The Court will only strike down a congressional action if that action is not rationally related to a valid enumerated power c. The Court will not inquire into the legislator’s motive with regard to the action D. NLRB v. Jones & Laughlin Steel, 301 U.S. 1 (1937), began the modern trend in Supreme Court Commerce Clause analysis 1. In this case the Court used the “substantial economic” effect theory 2. The Court concluded that a labor stoppage of the Pennsylvania intrastate manufacturing operations would have a substantial effect on interstate commerce 3. The Court held that the congressional move to regulate labor relations in Pennsylvania steel plants was constitutional 4. With this case the court showed a greater willingness to defer to legislative decisions 5. The Court will uphold an activity if it substantially affects interstate commerce 6. The holding of this case makes it irrelevant whether the activity being regulated occurs before, during, or after the interstate movement of goods or products 7. So long as there is or will be a substantial economic effect, the federal government may regulate the activity E. Wickard v. Filburn, 317 U.S. 111 (1942), and the cumulative effect theory 1. This theory provides that Congress may regulate not only acts that, taken alone, would have a substantial economic effect on interstate commerce, but it may also regulate an entire class of acts if the class has a substantial effect 2. In Wickard, the challenge was to the Agricultural Adjustment Act of 1938 that allowed the Secretary of Agriculture to set quotas for raising wheat on all U.S. farms; the quotas not only could be placed on wheat in interstate or intrastate commerce, but also on the wheat raised to be consumed on the farmer’s own property 3. The statute was upheld because a. The effect the home consumption had on the market, i.e., the more wheat consumed at home, the greater in the impact on the overall market, as these farmers were not purchasing as much wheat as they would with the quotas in place b. The cumulative effect was that when all the farmers were taken together, the home consumption had a great cumulative impact on interstate commerce F. U.S. v. Darby Lumber Company, 312 U.S. 100 (1941), again uses the cumulative effect theory 1. This is the second major expansion of the Commerce Clause power after the Necessary and Proper Clause 2. The cumulative effect theory provides that Congress may regulate not only acts, that taken alone would have a substantial economic impact on interstate commerce, but also an entire class of acts if the class has a substantial effect G. The modern trend: The Court expanded the reach of the Commerce Clause by recognizing three theories upon which a commerce-based regulation may be based: 1. An expanded “substantial economic effect” theory 2. A cumulative effect theory 3. The expanded commerce-prohibiting protective theory Congress and Its Powers 25

IV. The Delegation of Legislative Powers A. Mistretta v. U.S., 488 U.S. 361 (1989) B. This case involved the U.S. Sentencing Commission set up by the federal legislature to develop mandatory guidelines for federal judges to use when sentencing defendants in federal criminal cases C. Congress empowered the seven-member commission and put three federal judges on the commission D. The plaintiff in this case claimed that this was an unconstitutional delegation of the legislative power that threatened the separation of powers doctrine and the balance between the legislative and judicial branches of government E. The Court rejected plaintiff’s argument 1. Usually, nonjudicial duties or legislative authority may not be given to the judiciary 2. However, these judges play a significant role in sentencing, and allowing them to participate in the formulating of these sentencing guidelines is acceptable 3. This action does not violate the separation of powers in the federal system or any constitutional mandate V. Civil Rights and the Commerce Clause A. The use of the Commerce Clause has been key in the struggle for civil rights 1. Title II of the Civil Rights Act of 1964 banned discrimination in places of public accommodation 2. This law bans discrimination in any place that serves interstate travelers or goods that are moved through commerce B. Heart of Atlanta v. United States, 379 U.S. 241 (1964) 1. This case involved a local motel that refused to accommodate African Americans 2. The United States brought an action against the motel, claiming that the Civil Rights Act using the Commerce Clause could control the motel’s actions 3. The Court held that the type of discrimination practiced by the motel would have an aggregate effect on interstate commerce 4. “[t]he power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have substantial and harmful impact upon that commerce” 5. The Court was not troubled by the fact that Congress’ motive was not purely economic C. Katzenbach v. McClung, 379 U.S. 294 (1964): 1. This case demonstrates another time the Commerce Clause was used to reach a local activity 2. This case involved Ollie’s Barbeque in Birmingham, Alabama, a local restaurant with few ties to interstate commerce 3. Ollie’s Barbeque would not serve African Americans and the claim was that this dissuaded blacks from traveling and engaging in interstate commerce 4. Ollie’s food was purchased from an out-of-state vendor, but otherwise, it was an intrastate business 5. However, the Court felt that the discrimination had an aggregate effect on commerce 6. There was also a congressional finding of the impact this type of discrimination had on interstate commerce, but the Court seemed unconcerned about this finding D. Would Heart of Atlanta and Katzenbach be decided the same way today in light of the Lopez and Morrison cases discussed earlier? 1. It would seem that neither of the latter cases would have a significant impact on Heart of Atlanta or Katzenbach 2. The desire to eliminate discrimination would probably persuade the Court to make the same decision today as it did in the 1960s VI. Congressional Investigative Powers A. Investigations can be carried out by Congress via its committees 1. It has the right to subpoena testimony in matters relevant to contemplated legislation 26 Chapter 4

2. Witnesses who refuse to give the ordered testimony may be subjected to criminal contempt proceedings B. Sometimes this congressional power conflicts with a citizen’s right to freedom of association 1. This conflict arises when the investigation concerns alleged subversive activity 2. Witnesses may be asked about their own associational activities or about those of another 3. In the 1960s the Court began restricting the scope of legislative investigations into subversive activities 4. The Court used the balancing test to find the balance between the individual’s rights and the legislative need for information 5. The Court was unwilling to strictly scrutinize the asserted legislative interest to see if it was compelling and not unduly restrictive a. In Barenblatt v. United States, 360 U.S. 109 (1959), the Court upheld a contempt conviction where the witness refused to disclose information to the House Un- American Activities Committee (1) The Court did so using the balancing test (2) The Court asked whether the questions asked of the witness were related to a valid legislative purpose (3) The Court held that they were, and upheld the conviction b. The Court chose to use the strict scrutiny test in the case of Gibson v. Florida, 372 U.S. 539 (1963) (1) The Court articulated a new strict scrutiny standard for challenges to an investigation by the Florida legislature (2) It held that whenever a legislative investigation intrudes upon First Amendment rights, the state must “convincingly show a substantial relation between the information sought and a subject of overriding a compelling state interest” (3) The test was not met in this case VII. Congressional Membership and Privileges A. The Constitution contains “qualification clauses” that set the specific requirements for membership in Congress 1. Article I, sec. 2, clause 2 requires each member of the House to be: a. At least 25 years of age b. A citizen of the United States for at least seven years c. A resident of the state from which he/she is elected 2. Article I, sec. 3, clause 3 governs Senate membership and requires a member to be: a. At least 30 years old b. A national citizen for at least nine years c. A resident of the state from which he/she is elected B. Powell v. McCormack, 395 U.S. 486 (1969): This case involved a congressional attempt to avoid seating an elected member by imposing additional membership qualifications 1. The House refused to seat Adam Clayton Powell when a congressional committee had found that he had avoided service of process in the New York Courts, diverted House funds, and made a false report; Powell sued for declaratory judgment and won 2. Powell argued that the House could only look at the qualifications found in Article I, sec. 2, clause 2 to determine whether he ought to be seated 3. The House argued that because of Article I, sec. 5, it had the right to determine what qualifications were necessary for membership in the House 4. The Court agreed with Powell, saying that all Article I, sec. 5 allowed the House to do was to determine whether the qualifications spelled out in Article I, sec. 2 had been met; the House had no right to impose additional qualifications C. But, can the states supplement these requirements? 1. This question was asked in U.S. Term Limits, Inc. v. Thornton 514 U.S. 779 (1995): In this case Arkansas modified its constitution to add additional qualifications that anyone who had already served three terms in the House or two terms in the Senate could not run for that office again Congress and Its Powers 27

2. The Court struck down the Arkansas provision because it was beyond the state’s constitutional authority 3. Justice Stevens wrote, “Permitting individual States to formulate diverse qualifications for their congressional representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure” 4. Just as the Court was unwilling to allow the federal legislature to add qualifications, states may not add qualifications either VIII. Taxing Power A. This basic power is found in Article I, sec. 8 B. This is an independent source of federal authority, as Congress may tax activities or property that it might not be authorized to regulate directly C. Special tax rules 1. Uniform indirect taxes: See Article I, sec. 8, which says in part, “all duties, Imposts and Excises shall be uniform throughout the United States” 2. Article I, sec. 2 also says “direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers” a. Direct taxes must be arranged in such a way that the revenue produced comes from each state in proportion to its share of the nation’s overall population b. The question becomes, what is a “direct” tax? (1) Tax on real property (2) Parts of the 1894 Income Tax Act were held to be direct (and therefore invalid because they were not levied according to the population) (3) The Sixteenth Amendment remedied the income tax problem as it gave Congress the power to lay and collect taxes on income, without apportionment among the several states (4) This put to rest the need to distinguish between direct and indirect taxes c. Article I, sec. 9 states that no duty or tax may be imposed on exports 3. Tax and regulation: a. All taxes have a regulatory effect b. If the impact of the tax is one that could be achieved directly by use of another enumerated power, the regulatory effect is constitutionally insignificant c. If the regulatory effect is one that could not have been achieved directly, then the tax may be invalid as a disguised regulation in an area that Congress should be involved in d. Rules (1) A tax that produces substantial revenue will almost certainly be sustained and the Court will not inquire into the congressional motive behind it (2) Regulatory provisions that accompany the tax are valid if they bear a reasonable relation to the tax’s enforcement (3) A tax that regulates directly through its rate structure is valid IX. Spending Power A. Article I, sec. 8: The power to lay and collect taxes, pay debts, and provide for the common defense and general welfare of the country B. Is the power to spend limited to those things specifically enumerated? 1. United States v. Butler, 297 U.S. 1 (1936): 2. Taxing and spending powers are enumerated powers, so there are few limitations on this power; Congress may spend or tax to benefit the general welfare 3. Historically, the Court declared the power to tax and spend was a separate and distinct power for the others enumerated in Article I, sec. 8 of the Constitution 4. Thus, these powers stood on equal footing with the power to regulate commerce and the other powers found in that article 5. The Court also held that there was no separate power for “providing for the general welfare” a. Therefore, Congress may not regulate in a particular area merely on the ground that it is thereby providing for the general welfare; only the taxing and spending powers may be used to provide for the general welfare 28 Chapter 4

b. Congress has no right to regulate areas of local control such as agriculture, and this includes the prohibition to coercively purchase compliance with a regulatory scheme as in Butler c. In Butler, Congress was using a contract to bind the farmer to obey the regulations, and the Court said a contract could not be used in this way as it “would tend to nullify all constitutional limitations upon legislative power” d. In its holding, the Court articulated the distinction between a conditional appropriation that would be constitutional and a use of contracts to do what Congress does not have the power to do e. This distinction was later abandoned in Steward Machine Co. v. Davis, 301 U.S. 548 (1937): This case upheld a provision of the Social Security Act that allowed employers to receive a credit against federal tax for any contribution to a state- enacted unemployment plan; the Court upheld this because of the need to combat a federal problem, i.e., unemployment 6. Congress still doesn’t have the power to regulate for the purpose of providing for the general welfare, but Congress may spend for the general welfare 7. Today, the Tenth Amendment and the Court will not prevent Congress from using its spending power in areas of primarily local interest 8. Other constitutional provisions may still prevent Congress from using its spending provisions, such as the Due Process Clause X. War, Treaty, and Foreign Affairs Powers A. War power 1. Congress was given the power to declare war and to tax and spend for the national defense 2. Congress also has the exclusive right to raise an army and provide for and maintain a navy 3. Because the President is the Commander in Chief of the armed forces, the executive and legislative branches, in effect, share the war power 4. The impact of the war power on federalism has arisen in areas of economic regulation during wartime a. Woods v. Miller, 333 U.S. 138 (1948): b. This case involved a congressional imposition of rent controls due to a housing shortage at the end of World War II c. The Court upheld this imposition because the shortage was caused by the war, and technically, at the time it was enacted, the state of war still existed d. The Court held that Congress could act under these conditions to address the housing shortage e. Again, the Court found the congressional power to be necessary and proper B. Treaty power 1. This power is divided between the executive and legislative branches of the federal government a. The President may negotiate and make the treaty, but b. The treaty must be ratified by a two-thirds vote of the Senate c. This power is found in Article II, sec. 2 of the Constitution 2. A validly ratified treaty is equivalent to a federal statute a. When there is a conflict between a treaty and a statute, whichever was enacted later controls b. The last expression of the sovereign will must control 3. Power to ratify a. Article I, sec. 8 b. This is an enumerated power c. Missouri v. Holland, 252 U.S. 416 (1920) 4. A treaty may not violate a constitutional guarantee or prohibition a. Reid v. Covert, 354 U.S. 1 (1957): “. . . no agreement with a foreign nation can confer power on the Congress, or any other branch of Government, which is free from the restraints of the Constitution” C. Foreign affairs power Congress and Its Powers 29

1. No branch of government was given authority over foreign affairs 2. The Court has always recognized that Congress, along with the President, has this implied power a. It has long been a constitutional principle that the federal government is responsible for foreign affairs b. This principle has been implied from the constitutionally imposed limitation on state interference with foreign affairs, which bars the states from making treaties or imposing an import/export tax, etc. XI. Other Powers A. Coin money and regulate the value of money 1. This enumerated power includes the congressional power to charter banks 2. Congress may restrain circulation of notes and impose a tax upon the circulation of notes of state banks or of municipal corporations 3. This power includes the power to surrender gold coins and gold certificates in exchange for other currency 4. Counterfeiting B. Establish post offices 1. The early question was, what did “establish” mean? a. The debate ended with Kohl v. U.S., 91 U.S. 367 (1876) b. The Court upheld the congressional power to appropriate a parcel of land as a site for a post office and courthouse 2. The postal power of Congress includes all measures necessary to ensure the transit and prompt delivery of the mail 3. It also includes the power to prevent the misuse of postal facilities Lamont v. Postmaster General, 381 U.S. 301 (1965) C. Immigration and naturalization of aliens 1. This is a power held exclusively by Congress as granted in Article I, sec. 8 2. The states may not interfere with this power 3. An alien may become a U.S. citizen only if he or she complies with the terms that Congress has imposed 4. The first immigration act only allowed “free white persons” to become citizens a. This act was expanded to include those of African descent in 1870 b. Asians were excluded from U.S. citizenship until 1882 c. Currently, naturalization statutes bar subversives, dissidents, and radicals from citizenship, and race, ethnicity, and national origin are immaterial (1) Any person “who advocates or teaches, or who is a member of or affiliated with any organization that advocates or teaches . . . opposition to all organized government” or “who advocates or teaches or who is a member of or affiliated with an organization that advocates or teaches the overthrow by force or violence or other unconstitutional means of the government of the United States” or who is a member of or affiliated with the Community Party, or other communist organization or other totalitarian organizations, is ineligible, 8 U.S.C. 142(a) (2) Also, a person can be denied citizenship if the appropriate federal official determines that he or she is not of good moral character, 8 U.S.C. 142(a)(3) d. In Osborn v. Bank of the United States, 22 U.S. 737 (1824), Justice Marshall wrote: “[a] naturalized citizen . . . becomes a member of the society, possessing all the rights of a native citizen, and standing in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is, to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as it respects the individual.” D. The legislature’s role in amending the Constitution 1. To propose the amendment: a. Bring the actual amendment forward for consideration b. Have a two-thirds vote to continue consideration 2. Ratify: 30 Chapter 4

a. Ratification is done by the states b. The amendment must be approved by three-fourths of the states c. An alternative of calling a constitutional convention to amend the Constitution exists, but has never been used XII. Tenth Amendment Limits on Congressional Power A. This amendment states that all governmental powers that are not specifically given to the federal government are police powers reserved for the states B. This amendment fell into disuse following Carter v. Carter Coal Company, 298 U.S. 238 (1936), a case which challenged the Bituminous Coal Conservation Act of 1935 1. The statute set maximum hours and minimum wages for coal miners 2. The statute was held to be unconstitutional as the Court did not believe that this was a valid use of the congressional commerce power 3. The Court found no direct, logical relationship between the local production of coal and interstate commerce 4. This was a blow to President Roosevelt’s New Deal C. The Court did not use the Tenth Amendment again for 40 years, and today, the Tenth Amendment seems irrelevant 1. This amendment places no practical limitations on the congressional exercise of the commerce power 2. There are other congressional powers that are limited by the Tenth Amendment, however D. National League of Cities v. Usery, 426 U.S. 833 (1976), seemed to revive use of the Tenth Amendment. 1. The Court held that the Tenth Amendment barred Congress from making federal minimum wage and overtime rules applicable to state and municipal employees 2. The Court’s rationale? The Court held that while the national government could regulate minimum wage and overtime for private employers, it could not do so with state or local governments because of the Tenth Amendment 3. “Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in the federal system” 4. The challenged federal rules violated the states’ integrity and ability to function in two ways: a. The rule impaired the states’ ability to function as a matter of cost, in that compliance would be a heavy financial burden on the states and local governments b. The new rules eliminated the discretion of the states to decide how they wished to allocate a fixed pool of resources 5. If the Court had allowed Congress to use the proposed rules, Congress would, in effect, have been making employment decisions on behalf of the states E. Usery was overturned, however, a few years later in the case of Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) 1. The problem with the Usery decision is that it was impossible to distinguish between a traditional government function, such as state employment decisions, and nontraditional government functions that could be regulated by the federal government 2. Usery led to a subjective approach to decision making in the courts, which led to inconsistency 3. The Court held that the state sovereign interests are protected by the “procedural safeguards inherent in the structure of the federal system” not by the judiciary a. Specifically, the Court noted that each state is represented in the federal legislature by two senators and a proportionate number of representatives b. Each state participates in the presidential election and is represented by the President 4. What is the significance of Garcia? Once Congress acts pursuant to its commerce power, this act regulates the states and this is tantamount to regulating a private party, which the Court has already upheld F. Post Garcia: Other cases seem to diminish the effect of Garcia Congress and Its Powers 31

1. Alden v. Maine, 526 U.S. 1002 (1999): The decision blocked Congress from forcing the states to hear civil damage suits in their own state courts, as this is equivalent to forcing the states to give up sovereign immunity 2. New York v. U.S., 505 U.S. 144 (1992): Congress may not force a state to legislate or regulate in a particular manner a. A “take title” provision was used by Congress to encourage states to arrange for disposal of their waste, which meant that the state was required to take title and be liable for any damages that might arise in connection with this waste b. The Court held that the”take title” provision violated the Tenth Amendment and that the states could not be required to accept this responsibility 3. Printz v. U.S., 521 U.S. 898 (1997): The Court held that the federal government could not require state executive-branch personnel to perform even ministerial functions XIII. Summary

Key Terms and Definitions balancing test: A doctrine in constitutional law that says a court should balance constitutional rights such as free speech against the right of the government to control conduct it calls harmful. citizenship: A person acquires citizenship when born in the United States, after going through the for- mal process of naturalization, or when born abroad to a U.S. citizen. A person is a citizen of the state where he or she has permanent residence, and a corporation is a citizen of the state where it was legally created. commerce: The buying, selling, transporting, or exchanging of goods or services. Commerce Clause: The provision of the U.S. Constitution (Article I, sec. 8) that gives Congress the power to control trade with foreign countries and from state to state. This is called the commerce power. Congress can regulate anything that “affects interstate commerce” or uses the “instrumentalities of inter- state commerce” (and can keep the states from regulating interstate commerce because the federal gov- ernment has this power under the Supremacy Clause). declaratory judgment: A judicial opinion that states the rights of the parties or answers a legal ques- tion without awarding any damages or ordering that anything be done. eminent domain: The government’s right and power to take private land for public use by paying for it. immigration: To come into a country of which one is not a native or permanent resident. naturalization: The formal process of becoming a citizen of a country. Necessary and Proper Clause: Article I, Section 8, Clause 18 of the U.S. Constitution gives Congress the power to pass all laws appropriate to carry out its functions. Penumbra Doctrine: The principle that the Necessary and Proper Clause of the U.S. Constitution al- lows the federal government to take all actions to carry out purposes that are only implied from other powers. ratification: Confirmation and acceptance of a previous act done by you or by another person. Supremacy Clause: The provision in Article VI of the U.S. Constitution that the U.S. Constitution, laws, and treaties take precedence over conflicting state constitutions or laws. Tenth Amendment: The U.S. constitutional amendment that says all powers not specifically given to the federal government are kept by the states and the people. treaty: A formal agreement between countries on a major political subject. treaty power: The federal power to enter into a formal agreement with a foreign country as found in the treaty clause of the U.S. Constitution. War Powers Clauses: The U.S. constitutional clauses (Article I, sec. 8, clauses 11–14) that give Congress the power to declare war and raise armies and give the President the power to carry on the war. 32 Chapter 4

Review Questions

1. Why is the doctrine of nondelegability used, and why is it important that Congress be allowed to del- egate its authority under certain circumstances?

2. What is the significance of the recognized authority of Congress to use its commerce powers in the civil rights arena? Are there limitations on the use of this power?

3. What is meant by “necessary and proper” with regard to congressional powers?

4. Did the congressional investigation into Communist activity in the 1950s change the way that Amer- icans view the congressional power to investigate? Why or why not?

5. Why was the Court so adamant that neither the legislature itself, nor the states, be allowed to add ad- ditional qualifications for senators or representatives elected to federal office?

6. Why are the powers to enter into war, form a treaty, and handle foreign affairs considered shared pow- ers between the legislative and executive branches?

Internet Connections

1. For more information regarding immigration and naturalization, see the Bureau of Citizenship and Immigration Service’s Web site at http://www.immigration.gov.

2. For information on your elected officials and current legislative issues, visit the Legislative Action Cen- ter’s Web site at http://gov.findlaw.com.

3. To research legislation, legislative history, and legislative publications, visit the Law Librarian’s Soci- ety’s Web site to examine the LLSDC’s Legislative Source Book at http://www.llsdc.org.

4. For information on current bills, House documents, and historical information about the House of Representatives, visit the House of Representative’s Office of the Clerk’s Web site at http://www. clerkweb.house.gov.

5. For information on the Senate, current legislation, and legislative history, visit the U.S. Senate’s Web site at http://www.senate.gov.