chapter iii powers of the national government. a useful distinction allocation of constitutional...

Chapter IIIChapter III

Powers of the Powers of the National GovernmentNational Government

A Useful DistinctionA Useful Distinction

Allocation of Constitutional Allocation of Constitutional Authority Among the BranchesAuthority Among the Branches

Vesting of Constitutional Power in Vesting of Constitutional Power in the National Governmentthe National Government

A Useful DistinctionA Useful Distinction Allocation of Constitutional Allocation of Constitutional

Authority Among the BranchesAuthority Among the Branches CongressCongress

LegislateLegislate ImpeachImpeach Advice & ConsentAdvice & Consent

ExecutiveExecutive Laws be Faithfully ExecutedLaws be Faithfully Executed Commander in ChiefCommander in Chief Negotiate TreatiesNegotiate Treaties

JudicialJudicial Judicial ReviewJudicial Review

A Useful DistinctionA Useful Distinction Vesting of Constitutional Power in Vesting of Constitutional Power in

the National Governmentthe National Government Enumerated PowersEnumerated Powers Implied Powers of NationhoodImplied Powers of Nationhood

Enumerated Powers:Enumerated Powers: Article I, § 8 Article I, § 8

Congress shall have Power toCongress shall have Power to:: Tax & spend for the general welfareTax & spend for the general welfare Borrow moneyBorrow money Regulate interstate & foreign commerceRegulate interstate & foreign commerce Establish rules for naturalization & bankruptcyEstablish rules for naturalization & bankruptcy Coin money & adopt standards for weights & Coin money & adopt standards for weights &

measuresmeasures Punish counterfeitingPunish counterfeiting Establish post offices & post roadsEstablish post offices & post roads Provide for copyrights & patentsProvide for copyrights & patents Constitute tribunals inferior to the Supreme Constitute tribunals inferior to the Supreme

CourtCourt

Enumerated Powers:Enumerated Powers: Article I, § 8 Article I, § 8

Congress shall have Power toCongress shall have Power to:: Define & punish piracies, felonies on the high Define & punish piracies, felonies on the high

seas and offences against the law of nationsseas and offences against the law of nations Declare war, grant letters of Marque and Declare war, grant letters of Marque and

Reprisal & make rules concerning captures Reprisal & make rules concerning captures on land and wateron land and water

Raise and support armiesRaise and support armies Provide & maintain a navyProvide & maintain a navy Provide for a militiaProvide for a militia Exercise authority over seat of governmentExercise authority over seat of governmentSee alsoSee also Article IV, § 3: Territories & property Article IV, § 3: Territories & property

of USof US

Enumerated Powers:Enumerated Powers:Enforcement Powers in Civil Rights Enforcement Powers in Civil Rights

AmendmentsAmendments Amendment XIII: Slavery prohibitionAmendment XIII: Slavery prohibition Amendment XIV: Due process, equal Amendment XIV: Due process, equal

protection, privileges or immunities, protection, privileges or immunities, citizenshipcitizenship

Amendment XV: Race & votingAmendment XV: Race & voting Amendment XIX: Gender & votingAmendment XIX: Gender & voting Amendment XXIV: Poll tax prohibitionAmendment XXIV: Poll tax prohibition Amendment XXVI: Age & votingAmendment XXVI: Age & voting

McCulloch v. Maryland McCulloch v. Maryland (1819)(1819)

Basic facts:Basic facts: Congress establishes the Second Bank of the Congress establishes the Second Bank of the

United States (a central bank).United States (a central bank). State of Maryland imposes a tax on the Bank.State of Maryland imposes a tax on the Bank. McCulloch, Treasurer of the Baltimore branch McCulloch, Treasurer of the Baltimore branch

of the Bank refuses to pay tax.of the Bank refuses to pay tax. McCulloch is convicted of violating the state McCulloch is convicted of violating the state

law.law. Maryland Court of Appeals affirms his Maryland Court of Appeals affirms his

conviction & upholds the constitutionality of the conviction & upholds the constitutionality of the state law.state law.


Is McCulloch’s claim justiciable?Is McCulloch’s claim justiciable?

In determining whether McCulloch’s In determining whether McCulloch’s conviction should be affirmed, what conviction should be affirmed, what basic issue must the Court resolve?basic issue must the Court resolve?


Does the incorporation of a bank come Does the incorporation of a bank come within the enumerated powers of within the enumerated powers of Congress (i.e., of the United States)?Congress (i.e., of the United States)? Definitional problem?Definitional problem? Structural problem?Structural problem? External problem?External problem?

If the answer to that question is “yes”, If the answer to that question is “yes”, what follows from that answer? what follows from that answer?


““[The] government of the United States, [The] government of the United States, then, though limited in its powers, is then, though limited in its powers, is supreme; and its laws, when made in supreme; and its laws, when made in pursuance of the constitution, form the pursuance of the constitution, form the supreme law of the land, ‘anything in the supreme law of the land, ‘anything in the constitution or laws of any state to the constitution or laws of any state to the contrary notwithstanding.” (page 128)contrary notwithstanding.” (page 128)

WHAT DOES THIS MEAN?WHAT DOES THIS MEAN?


Is there an enumerated power to create a Is there an enumerated power to create a national bank? To create corporations national bank? To create corporations generally?generally?

If there is no specific power, does If there is no specific power, does Marshall rely on an implied power?Marshall rely on an implied power?

What does he focus on in terms of the What does he focus on in terms of the definitional scope of powers vested in the definitional scope of powers vested in the national government? (pages 128-129)national government? (pages 128-129) How would you characterize this argument?How would you characterize this argument?


The Necessary & Proper ClauseThe Necessary & Proper Clause::

““To make all Laws which shall be To make all Laws which shall be necessary and proper for carrying into necessary and proper for carrying into Execution the foregoing Powers, and Execution the foregoing Powers, and all other Powers vested by this all other Powers vested by this Constitution in the Government of the Constitution in the Government of the United States, or in any Department United States, or in any Department or Officer thereof.”or Officer thereof.”


What is Maryland’s argument with What is Maryland’s argument with respect to the Necessary & Proper respect to the Necessary & Proper Clause?Clause?

What is Marshall’s response?What is Marshall’s response? Note his interpretive techniques.Note his interpretive techniques.

LogicLogic Text close focusText close focus Text comparativeText comparative Text locationText location Text apparent operationText apparent operation ConsequencesConsequences


Who decides whether the means adopted by Who decides whether the means adopted by Congress fall within the scope of the Congress fall within the scope of the Necessary and Proper Clause?Necessary and Proper Clause? What standard of review?What standard of review?

““Let the end be legitimate, let it be within the Let the end be legitimate, let it be within the scope of the constitution, and all means which scope of the constitution, and all means which are appropriate, which are plainly adapted to are appropriate, which are plainly adapted to that end, which are not prohibited, but consist that end, which are not prohibited, but consist with the letter and spirit of the constitution with the letter and spirit of the constitution are constitutional.” (page 131)are constitutional.” (page 131)

Enumerated PowersEnumerated Powers Art. I, Art. I, §§ 8 8 Art. IV, Art. IV, §§ 3 3 Civil Rights AmendmentsCivil Rights Amendments Necessary & Proper ClauseNecessary & Proper Clause

Pertains to Authorities & PowersPertains to Authorities & Powers

McCulloch v. MarylandMcCulloch v. Maryland(Part II)(Part II)

Part II is premised on the validity of Part II is premised on the validity of the congressional creation of the the congressional creation of the Second Bank of the United States.Second Bank of the United States.

Question in Part II: May the State of Question in Part II: May the State of Maryland impose a tax on a branch Maryland impose a tax on a branch of the Bank?of the Bank?

McCulloch v. MarylandMcCulloch v. Maryland(Part II)(Part II)

The power to tax is said to be The power to tax is said to be “concurrent.” What does this mean?“concurrent.” What does this mean?

Does anything in the Constitution or Does anything in the Constitution or the charter of the Bank expressly the charter of the Bank expressly prohibit states from imposing a tax prohibit states from imposing a tax on a federal instrumentality?on a federal instrumentality?

McCulloch v. MarylandMcCulloch v. MarylandMarshall’s Axiom:Marshall’s Axiom:

““[The US] constitution and the laws [The US] constitution and the laws made in pursuance thereof are made in pursuance thereof are supreme; that they control the supreme; that they control the constitution and laws of the constitution and laws of the respective states, and cannot be respective states, and cannot be controlled by them.”controlled by them.”

McCulloch v. MarylandMcCulloch v. MarylandMarshall’s Corollaries:Marshall’s Corollaries:

““1st. That a power to create implies a 1st. That a power to create implies a power to preserve; 2d. That a power to power to preserve; 2d. That a power to destroy, if wielded by a different hand, is destroy, if wielded by a different hand, is hostile to and incompatible with these hostile to and incompatible with these powers to create and to preserve; 3d. powers to create and to preserve; 3d. That where this repugnancy exists, that That where this repugnancy exists, that authority which is supreme must control, authority which is supreme must control, not yield to that over which it is not yield to that over which it is supreme.”supreme.”

McCulloch v. MarylandMcCulloch v. Maryland Is the state’s power to tax incompatible Is the state’s power to tax incompatible

with the national government’s power to with the national government’s power to create and preserve the Bank of the US?create and preserve the Bank of the US?

““The only security against the abuse of The only security against the abuse of this power [to tax] is found in the this power [to tax] is found in the structure of the government itself.” ?????structure of the government itself.” ?????

Why doesn’t the previous principle sustain Why doesn’t the previous principle sustain the state’s power here?the state’s power here?

McCulloch v. MarylandMcCulloch v. Maryland What generic type of constitutional What generic type of constitutional

argument is Marshall engaging in?argument is Marshall engaging in? DefinitionalDefinitional StructuralStructural ExternalExternal

Federalism & SupremacyFederalism & Supremacy Compare constitutional vision of Compare constitutional vision of

MarburyMarbury with vision of with vision of McCullochMcCulloch

U.S. Term Limits, Inc. v. U.S. Term Limits, Inc. v. ThorntonThornton

(1995)(1995) Amendment 73: How does it Amendment 73: How does it

operate?operate? Two questions presentedTwo questions presented

Does the Constitution forbid States Does the Constitution forbid States from adding to or altering the from adding to or altering the “qualifications” provided in the “qualifications” provided in the Constitution?Constitution?

If so, does Amendment 73 violate this If so, does Amendment 73 violate this principle?principle?

U.S. Term Limits, Inc. v. U.S. Term Limits, Inc. v. ThorntonThornton

(1995)(1995) Three constitutional issues:Three constitutional issues:

The Elections ClauseThe Elections Clause The Tenth AmendmentThe Tenth Amendment The Qualifications ClauseThe Qualifications Clause

Compare the majority & the dissentCompare the majority & the dissent Which opinion reflects Which opinion reflects McCullochMcCulloch & &

which rejects it or at least adopts a which rejects it or at least adopts a more restrained view of it?more restrained view of it?

The Commerce PowerThe Commerce PowerA Definitional ProblemA Definitional Problem: :

What is the scope of the commerce What is the scope of the commerce power? power?

Does the action being challenged Does the action being challenged fall within that defined scope?fall within that defined scope?

The Text: Art. I, § 8, cl. 3The Text: Art. I, § 8, cl. 3

““Congress shall have the Congress shall have the Power To . . . Regulate Power To . . . Regulate Commerce with foreign Commerce with foreign Nations, and among the Nations, and among the several states, and with the several states, and with the Indian Tribes.”Indian Tribes.”

Chief Justice MarshallChief Justice Marshall Marbury v. MadisonMarbury v. Madison Martin v. Hunter’s Lessee (recused)Martin v. Hunter’s Lessee (recused) McCulloch v. MarylandMcCulloch v. Maryland Gibbons v. OgdenGibbons v. Ogden

Gibbons v. Ogden (1824)Gibbons v. Ogden (1824)

New Jersey New York

Gibbons v. Ogden (1824)Gibbons v. Ogden (1824) Ogden – Exclusive Right (NY)Ogden – Exclusive Right (NY) Gibbons – License (US)Gibbons – License (US) NY Courts rule for Ogden & enjoin NY Courts rule for Ogden & enjoin

GibbonsGibbons Appeal to US Supreme CourtAppeal to US Supreme Court

Marbury v. MadisonMarbury v. Madison Martin v. Hunter’s LesseeMartin v. Hunter’s Lessee McCullochMcCulloch

Gibbons v. Ogden (1824)Gibbons v. Ogden (1824)Two potential issues of constitutional Two potential issues of constitutional

law:law:DefinitionalDefinitionalStructuralStructural

What is the “definitional” issue stated What is the “definitional” issue stated in terms of this particular in terms of this particular controversy?controversy?

Gibbons v. Ogden (1824)Gibbons v. Ogden (1824) CommerceCommerce

What is it?What is it? Among the several StatesAmong the several States

What is included?What is included? What is excluded? (Reserved to the What is excluded? (Reserved to the

states.)states.) RegulateRegulate

Who decides?Who decides?

Gibbons v. Ogden (1824)Gibbons v. Ogden (1824)Was the grant of the federal Was the grant of the federal “coastal” license a valid exercise “coastal” license a valid exercise of the commerce power? Why?of the commerce power? Why?

How would you describe the How would you describe the defined scope of the Commerce defined scope of the Commerce Clause after Clause after GibbonsGibbons??

Post-Gibbons & Pre-New Post-Gibbons & Pre-New DealDeal

The problem of state power over The problem of state power over internal commerce:internal commerce: SupremacySupremacy Concurrent authorityConcurrent authority

The “enclave” theory:The “enclave” theory: From “concurrent” to exclusiveFrom “concurrent” to exclusive The Tenth AmendmentThe Tenth Amendment Hammer v. DagenhartHammer v. Dagenhart

Post-Gibbons & Pre-New Post-Gibbons & Pre-New DealDeal

Emerging theoriesEmerging theories Stream of commerceStream of commerce Protective powerProtective power Commerce-ProhibitingCommerce-Prohibiting Direct & IndirectDirect & Indirect

NLRB v. Jones & Laughlin NLRB v. Jones & Laughlin Steel Corp.Steel Corp.

(1937)(1937) NLRA grants employees of businesses NLRA grants employees of businesses

affecting ISC the right to engage in affecting ISC the right to engage in collective bargainingcollective bargaining

NLRB finds that J&L engaged in unfair NLRB finds that J&L engaged in unfair labor practices as defined by the NLRAlabor practices as defined by the NLRA Discriminated against union members (fired Discriminated against union members (fired

them)them) Engaged in anti-union coercion of employeesEngaged in anti-union coercion of employees

Cease & desist order issuedCease & desist order issued


(1937)(1937) J&L argue:J&L argue:

NLRA not a valid exercise of the commerce NLRA not a valid exercise of the commerce powerpower

Beyond the defined scope of the powerBeyond the defined scope of the power Impermissible regulation of labor & Impermissible regulation of labor &

productionproduction Manufacturing is not “commerce”Manufacturing is not “commerce” Reserved powers – state enclaveReserved powers – state enclave

Note: FDR was in his second term, but Note: FDR was in his second term, but had appointed no members to the Court.had appointed no members to the Court.


(1937)(1937) Court’s responseCourt’s response

Affecting commerce rationaleAffecting commerce rationale Stream of commerceStream of commerce Enclave theoryEnclave theory Direct & Indirect Direct & Indirect

Compare the law of “Personal Compare the law of “Personal Jurisdiction”Jurisdiction”


(1937)(1937) What is the defined scope of the ISC What is the defined scope of the ISC

power after Jones & Laughlin? In power after Jones & Laughlin? In other words, how would you other words, how would you measure the constitutionality of an measure the constitutionality of an exercise of the ISC power?exercise of the ISC power?

United States v. Darby United States v. Darby (1941)(1941)

By 1941, FDR had appointed 8 of the By 1941, FDR had appointed 8 of the 9 sitting Justices; the only non-FDR 9 sitting Justices; the only non-FDR appointee was Justice Roberts who appointee was Justice Roberts who had been the “swing” vote in had been the “swing” vote in Jones Jones & Laughlin& Laughlin..


Fair Labor Standards ActFair Labor Standards Act Prohibits the shipment in ISC of goods Prohibits the shipment in ISC of goods

produced under “substandard” labor produced under “substandard” labor conditions (minimum wage & maximum conditions (minimum wage & maximum hours)hours)

Prohibits substandard labor conditions Prohibits substandard labor conditions manufacturers whose products are manufacturers whose products are intended for shipment in ISCintended for shipment in ISC


Prohibition on Shipment in ISCProhibition on Shipment in ISC On what basis does Darby challenge this On what basis does Darby challenge this

measure?measure? On what grounds does the Court reject that On what grounds does the Court reject that

challenge?challenge? Enclave theory? (Enclave theory? (Hammer v. DagenhartHammer v. Dagenhart)) What is the defined scope of the ISC power What is the defined scope of the ISC power

with respect to the interstate shipment of with respect to the interstate shipment of goods or services? Any checks on that goods or services? Any checks on that power?power?


Regulation of labor conditions:Regulation of labor conditions: On what basis does the Court conclude On what basis does the Court conclude

that this regulation falls within the that this regulation falls within the defined scope of congressional power? defined scope of congressional power? (There are two separate rationales.)(There are two separate rationales.)

What role does the Tenth Amendment What role does the Tenth Amendment play (reserved powers doctrine)?play (reserved powers doctrine)?


What is the defined scope of the ISC What is the defined scope of the ISC power post-power post-DarbyDarby?? Hint: It’s a two-part test.Hint: It’s a two-part test.

Wickard v. Filburn (1942)Wickard v. Filburn (1942) Facts:Facts:

AAA imposes annual quotas on amount of AAA imposes annual quotas on amount of wheat a farmer may grow.wheat a farmer may grow.

Nationwide there are 16 “overproducing Nationwide there are 16 “overproducing states” and 32 “underproducing” statesstates” and 32 “underproducing” states

Filburn’s allotment: 11.1 acres Filburn’s allotment: 11.1 acres He sows 23 acres (239 additional bushels)He sows 23 acres (239 additional bushels)

Presumably to be consumed on farmPresumably to be consumed on farm $117 fine imposed$117 fine imposed

Wickard v. Filburn (1942)Wickard v. Filburn (1942) Does the regulation imposed by the Does the regulation imposed by the

AAA represent a constitutional AAA represent a constitutional exercise of the power over ISC? Does exercise of the power over ISC? Does it fall within the defined scope of that it fall within the defined scope of that power?power?

Filburn argues:Filburn argues: Regulation of production and Regulation of production and

consumptionconsumption Indirect effectsIndirect effects

Wickard v. Filburn (1942)Wickard v. Filburn (1942) The Court:The Court:

Production?Production? Indirect?Indirect? What is the measure of the ISC power?What is the measure of the ISC power? How does one measure the sufficiency of an How does one measure the sufficiency of an

effect on ISC?effect on ISC? How does “on-farm” consumption effect ISC?How does “on-farm” consumption effect ISC? Isn’t Filburn’s contribution to the effect Isn’t Filburn’s contribution to the effect

trivial?trivial? Primary restraint on ISC power?Primary restraint on ISC power?

The Civil Rights Cases The Civil Rights Cases (1964)(1964)

CRA of 1964 prohibits racial discrimination CRA of 1964 prohibits racial discrimination by private persons in public accommodations.by private persons in public accommodations. Cf. Fourteenth Amendment enforcement power & Cf. Fourteenth Amendment enforcement power &

requirement of state action.requirement of state action. Heart of Atlanta Motel v. USHeart of Atlanta Motel v. US: Court upholds : Court upholds

application of CRA to private hotel that application of CRA to private hotel that serves interstate travelers.serves interstate travelers.

Katzenbach v. McClungKatzenbach v. McClung: Court upholds : Court upholds application of CRA to local restaurant that application of CRA to local restaurant that sells food purchased in ISC.sells food purchased in ISC.

U.S. v. Lopez (1995)U.S. v. Lopez (1995) Gun-Free School Zones Act of 1990Gun-Free School Zones Act of 1990 Begins with the premise of Begins with the premise of

enumerated powers.enumerated powers. ““Few and defined”Few and defined”

Recites a brief history of Commerce Recites a brief history of Commerce Clause Jurisprudence, ends with Clause Jurisprudence, ends with emphasis on outer limits of that emphasis on outer limits of that power.power.

U.S. v. Lopez (1995)U.S. v. Lopez (1995) Commerce Power:Commerce Power:

The channels of ISCThe channels of ISC Anything that is itself ISCAnything that is itself ISC Example: the sale of goods interstateExample: the sale of goods interstate

The instrumentalities of ISCThe instrumentalities of ISC Anything being used to facilitate ISCAnything being used to facilitate ISC Example: interstate railroadsExample: interstate railroads

Activity that “substantially” affects ISCActivity that “substantially” affects ISC

U.S. v. Lopez (1995)U.S. v. Lopez (1995) What aspect of the “test” is at issue in What aspect of the “test” is at issue in

Lopez?Lopez? What is the government’s argument in What is the government’s argument in

support of constitutionality?support of constitutionality? Why doesn’t the GFSZA pass the test?Why doesn’t the GFSZA pass the test?

Nature of the activityNature of the activity Lack of jurisdictional nexusLack of jurisdictional nexus Lack of findingsLack of findings Attenuated chain of inferencesAttenuated chain of inferences

U.S. v. Lopez (1995)U.S. v. Lopez (1995) What does Justice Thomas suggest in What does Justice Thomas suggest in

his concurring opinion?his concurring opinion? What is the theme of the of Justices What is the theme of the of Justices

Souter’s dissent? Justice Breyer?Souter’s dissent? Justice Breyer? What is the current standard of What is the current standard of

review when Congress seeks to review when Congress seeks to regulate something that regulate something that substantially affects ISC?substantially affects ISC?

U.S. v. Morrison (2000)U.S. v. Morrison (2000) Violence Against Women ActViolence Against Women Act

Creates civil remedy for crimes of Creates civil remedy for crimes of violence motivated by genderviolence motivated by gender

Congress makes findings that gender-Congress makes findings that gender-based violence has a significant impact based violence has a significant impact on the national economyon the national economy

Majority: “Gender-motivated crimes Majority: “Gender-motivated crimes of violence are not, in any sense of of violence are not, in any sense of the phrase, economic activity.”the phrase, economic activity.” Categorical rule?Categorical rule?

Gonzales v. Raich (2005)Gonzales v. Raich (2005) The Controlled Substances Act prohibits The Controlled Substances Act prohibits

the production, possession & sale of the production, possession & sale of marijuana (etc.). It applies to interstate marijuana (etc.). It applies to interstate and intrastate transactions.and intrastate transactions.

Is the CSA constitutional as applied to Is the CSA constitutional as applied to intrastate, noncommercial cultivation intrastate, noncommercial cultivation and personal use of medical marijuana?and personal use of medical marijuana?

WickardWickard?? Apply Apply LopezLopez & & MorrisonMorrison..

State SovereigntyState Sovereignty Structural ConcernStructural Concern Tenth AmendmentTenth Amendment Scope of the LimitationScope of the Limitation

Garcia v. San Antonio Met. TransitGarcia v. San Antonio Met. Transit NY v. USNY v. US Printz v. USPrintz v. US

Compare Lopez & MorrisonCompare Lopez & Morrison Note: Potential External Limits on Note: Potential External Limits on

the ISC powerthe ISC power

The Power to Tax & The Power to Tax & Spend:Spend:

The General Welfare ClauseThe 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 Taxing: Definitional ScopeScope

““Some Revenue Test”Some Revenue Test” Penal or ProhibitoryPenal or Prohibitory

SRT creates strong presumption againstSRT creates strong presumption against Regulatory effect inadequateRegulatory effect inadequate Motives of Congress generally Motives of Congress generally

irrelevantirrelevant Scope of Scope of Child Labor Tax CaseChild Labor Tax Case & & US v. US v.

ConstantineConstantine Hypothetical: Gun-Free School Zones TaxHypothetical: Gun-Free School Zones Tax

Taxing: Structural LimitsTaxing: Structural Limits Separation of PowersSeparation of Powers Federalism (State Sovereignty)Federalism (State Sovereignty)

Must be nondiscriminatoryMust be nondiscriminatory May not impair traditional state May not impair traditional state

functionfunction Exception: recovery of costs of federal Exception: recovery of costs of federal

programprogram

Taxing: External LimitsTaxing: External Limits Uniformity ClauseUniformity Clause Direct Taxes & ProportionalityDirect Taxes & Proportionality

Sixteenth AmendmentSixteenth Amendment Prohibition on Taxes or Duties Laid Prohibition on Taxes or Duties Laid

on Exportson Exports Bill of Rights, etc.Bill of Rights, etc.

The Power to SpendThe 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 Spending: Definitional ScopeScope

Nature of the PowerNature of the Power Subsidiary (Madison)Subsidiary (Madison) Independent (Hamilton)Independent (Hamilton) Modern View (US v. Butler)Modern View (US v. Butler) Note: Incidental spendingNote: Incidental spending

Defined Scope of the PowerDefined Scope of the Power ExpenditureExpenditure

To pay debts of the US;To pay debts of the US; To provide for the common defense; orTo provide for the common defense; or To provide for the general welfare.To provide for the general welfare.

Courts “defer substantially” to CongressCourts “defer substantially” to Congress South Dakota v. DoleSouth Dakota v. Dole

Spending: Structural Spending: Structural LimitsLimits

Separation of PowersSeparation of Powers Hypothetical: Congress refuses to fund Hypothetical: Congress refuses to fund

the war in Iraqthe war in Iraq Hypothetical: Congress appropriates $ Hypothetical: Congress appropriates $

to create a division of the armed forces to create a division of the armed forces not subject to presidential controlnot subject to presidential control


Federalism (State Sovereignty)Federalism (State Sovereignty) Enclave Theory (US v. Butler)Enclave Theory (US v. Butler) Conditional Spending (SD v. Dole)Conditional Spending (SD v. Dole) Spending & the Necessary and Proper Spending & the Necessary and Proper

ClauseClause Provisions designed to protect the Provisions designed to protect the

disbursed federal fundsdisbursed federal funds

South Dakota v. Dole South Dakota v. Dole (1987)(1987)

Spending: Federal highway funds Spending: Federal highway funds provided to the states.provided to the states.

Condition: 5% reduction in funds if Condition: 5% reduction in funds if the state permits persons under 21 the state permits persons under 21 years of age to purchase or possess years of age to purchase or possess alcoholic beverages.alcoholic beverages.

Does the condition violate the Does the condition violate the principle of federalismprinciple of federalism??

South Dakota v. Dole South Dakota v. Dole (1987)(1987)

Note reaffirmation of the Note reaffirmation of the “Hamiltonian” model.“Hamiltonian” model.

May Congress impose conditions May Congress impose conditions on states that receive federal on states that receive federal monies? Yes, if: monies? Yes, if:

1.1. ??2.2. ??3.3. ??4.4. ??


Federalism (State Sovereignty)Federalism (State Sovereignty) Enclave Theory (US v. Butler)Enclave Theory (US v. Butler) Conditional Spending (SD v. Dole)Conditional Spending (SD v. Dole)

Condition must be unambiguously statedCondition must be unambiguously stated Condition must be related to the spending Condition must be related to the spending

programprogram Condition may not be coerciveCondition may not be coercive

Spending & the Necessary and Proper ClauseSpending & the Necessary and Proper Clause Provisions designed to protect the disbursed Provisions designed to protect the disbursed

federal fundsfederal funds

Spending: External Spending: External LimitsLimits

Bill of Rights, etc.Bill of Rights, etc. Coercion of states to violate individual Coercion of states to violate individual

rightsrights South Dakota v. DoleSouth Dakota v. Dole

Unconstitutional Conditions Unconstitutional Conditions DoctrineDoctrine

The Treaty Making PowerThe Treaty Making Power(Art. II, § 2 )(Art. II, § 2 )

Constitutional authority to enter treaties Constitutional authority to enter treaties is shared between the President & the is shared between the President & the SenateSenate President: Formation & NegotiationPresident: Formation & Negotiation Senate: Advice & Consent (2/3 vote)Senate: Advice & Consent (2/3 vote)

The “treaty power” validates a particular The “treaty power” validates a particular methodmethod through which law can be made through which law can be made Note the location of the “power”Note the location of the “power” Compare the Commerce PowerCompare the Commerce Power

The Treaty Making PowerThe Treaty Making Power(Art. II, § 2 )(Art. II, § 2 )

Two types of treaties (for purposes Two types of treaties (for purposes of constitutional law):of constitutional law): Self-executingSelf-executing Non-self-executingNon-self-executing

Treaties and the Supremacy ClauseTreaties and the Supremacy Clause Treaties and Federal StatutesTreaties and Federal Statutes Treaty Power: Process v. SubstanceTreaty Power: Process v. Substance

Treaty Power: Treaty Power: Definitional ScopeDefinitional Scope

To what subject matters may the treaty power To what subject matters may the treaty power be applied? (The Defined Scope)be applied? (The Defined Scope) Missouri v. HollandMissouri v. Holland (1920) (1920) Any matter requiring national action in concert Any matter requiring national action in concert

with other nations? Any matter of international with other nations? Any matter of international concern?concern?

A subsidiary power or an independent power?A subsidiary power or an independent power? Scope of the congressional power to Scope of the congressional power to

implementimplement As broad as the power itself? (As broad as the power itself? (Missouri v. HollandMissouri v. Holland)) Hypothetical: VAWA TreatyHypothetical: VAWA Treaty

Treaty Power: Structural Treaty Power: Structural LimitsLimits

Separation of PowersSeparation of Powers Note the shared nature of the power Note the shared nature of the power

reflects a separation of powers concernreflects a separation of powers concern Chapter 5 (further exploration)Chapter 5 (further exploration)

FederalismFederalism Enclave theory? (Enclave theory? (Missouri v. HollandMissouri v. Holland)) Anti-commandeering principle?Anti-commandeering principle?

Treaty Power: External Treaty Power: External LimitsLimits

Is a treaty superior to the Is a treaty superior to the Constitution?Constitution?

Potential external limits include:Potential external limits include: Bill of RightsBill of Rights Article I external limits on the power to Article I external limits on the power to

taxtax Ban on ex post facto laws, bills of Ban on ex post facto laws, bills of

attainderattainder Protection of habeas corpusProtection of habeas corpus

The Power to Make WarThe Power to Make War Article I, § 8 vests Article I, § 8 vests Congress with the with the

power to:power to: Tax & spend for the common defenseTax & spend for the common defense To declare warTo declare war To raise & support armiesTo raise & support armies To provide & maintain a navyTo provide & maintain a navy To provide for organizing, arming, and To provide for organizing, arming, and

discipling, the militia (National Guard)discipling, the militia (National Guard) Necessary & Proper ClauseNecessary & Proper Clause

The Power to Make WarThe Power to Make War Article II, § 2 provides:Article II, § 2 provides:

““The President shall be the Commander The President shall be the Commander in Chief of the Army and Navy of the in Chief of the Army and Navy of the United States, and of the Militia of the United States, and of the Militia of the several States, when called into the several States, when called into the actual Service of the United States….”actual Service of the United States….”

War Power: Definitional War Power: Definitional ScopeScope

The power may be exercised both The power may be exercised both domestically and internationally.domestically and internationally.

The power to prosecute war successfully The power to prosecute war successfully embraces the following possibilities:embraces the following possibilities: Preparation for the possibility of warPreparation for the possibility of war Action undertaken to prevent warAction undertaken to prevent war Waging warWaging war Ending warEnding war Ameliorating the effects of war (Ameliorating the effects of war (Woods v. Woods v.

Cloyd W. Miller Co.Cloyd W. Miller Co.))

War Power: Structural War Power: Structural LimitsLimits

Separation of PowersSeparation of Powers The congressional power to declare war The congressional power to declare war

v. the presidential power as v. the presidential power as commander-in-chiefcommander-in-chief Chapter 5Chapter 5

FederalismFederalism Enclave theory? (Enclave theory? (Woods v. Cloyd W. Woods v. Cloyd W.

Miller CoMiller Co.).) Anti-commandeering principle?Anti-commandeering principle?

War Power: External War Power: External LimitsLimits

Potential external limits include:Potential external limits include: Bill of RightsBill of Rights Ban on ex post facto laws, bills of Ban on ex post facto laws, bills of

attainderattainder Protection of habeas corpusProtection of habeas corpus

The potential leveling effect of war:The potential leveling effect of war: Korematsu v. United StatesKorematsu v. United States The Pentagon Papers CaseThe Pentagon Papers Case

The Fourteenth AmendmentThe Fourteenth AmendmentEnforcement PowerEnforcement Power

Section 5 of the 14th Amendment vests Section 5 of the 14th Amendment vests Congress with the power to “enforce” the Congress with the power to “enforce” the substantive provisions of the amendment:substantive provisions of the amendment: US & state citizenship definedUS & state citizenship defined Privileges or Immunities of US citizenshipPrivileges or Immunities of US citizenship Due ProcessDue Process Equal ProtectionEqual Protection

““Congruence” and “Proportionality”Congruence” and “Proportionality” See also: 13th, 15th, 19th, 24th & 26th See also: 13th, 15th, 19th, 24th & 26th

(Slide 7)(Slide 7)

chapter iii powers of the national government. a useful distinction allocation of constitutional...

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