The powers of Congress are enumerated in several places in the Constitution. The most important listing of congressional powers appears in Article I, Section 8 (see left) which identifies in seventeen paragraphs many important powers of Congress. In this section, we consider how several of the enumerated powers of Congress under the original Constitution have been interpreted.
The next series of cases illustrate two divergent approaches to analyzing whether an activity is reachable under the commerce power. In U. S. vs E. C. Knight the Court concluded that the Congress lacked the power to reach a monopoly in the "manufacture" of refined sugar, but could reach a "monopoly of commerce" involving sugar. The Knight case illustrates the formal (or "categorical") approach to analyzing the reach of the commerce power. The formal approach focuses on such questions as whether the regulated activitity is "in" or "outside" the stream of commerce, whether the activity is "local" or "interstate," or whether the effects of the activity on interstate commerce are "direct" or "indirect." The contrasting empirical approach, illustrated by Houston E. & W. Ry. Co. vs U. S., looks to the magnitude of the effect that the regulated activity has on interstate commerce, without special regard to how the activity is categorized. In Houston, the Court upheld a federal agency's regulation of freight rates on travel wholly within Texas because the freight transporation within Texas was found to be substantially affecting interstate commerce.
Hammer vs Dagenhart (1918) considered the constitutionality of the Child Labor Act, which banned items produced by child labor from interstate commerce. Adopting the formal approach, the Court saw the Act as unconstitutional attempt to regulate a purely local matter, workplace conditions. The harm of child labor, the Court concluded, had nothing to do with interstate commerce and thus fell outside the reach of congressional power.
N.L.R. B. vs Jones (1937) represented an important turning point in the Court's Commerce Clause jurisprudence. The year before, in a case called Carter vs Carter Coal Co., the Court had invalidated a New Deal program that attempted to regulate the wage and hour practices of coal companies on the ground that such practices were "local" and had only an "indirect" effect on interstate commerce. Enraged by the Court's decision in Carter and other cases, President Roosevelt proposed "packing the Court" with sympathetic justices by increasing its size from nine to fifteen. In N.L.R. B. vs Jones, Chief Justice Hughes and Justice Roberts side with the government in voting to uphold an N.L.R.B. action ordering the reinstatement of union organizing employees protected by federal law at a Pennsylvania steel plant--the "switch in time that saved nine." Over the objections of four dissenting justices who called the interstate effects of the regulated activity "too indirect," the Court concluded that the steel industry is an interstate web of activities stretching from the iron mines of Minnesota to the steel plants of Pennsylvania and thus the manufacturing of steel is properly reachable under the Commerce Clause.
U. S. vs Darby (1941), in unanimously overruling Hammer vs Dagenhart, demonstrated how much the Court had changed its approach to Commerce Clause in a generation. Using a "substantial effects" test, the Court upheld the Fair Labor Standards Act--an important piece of legislation that effectively set national minimum wage and maximum hour laws by prohibiting the interstate shipment of goods manufactured in violation of the federal standards.
that congressional exercises of power were valid
if shown to regulate
"substantially affecting" interstate commerce, the
Court proceeded to
up more opportunities for exercise of the commerce
power by holding
an activity only trivially affecting interstate
by regulated if all of the regulated activities of
cumulatively--had substantial interstate
effects. In Wickard
Filburn (1942), for example, the Court
upheld a $117 penalty
on a Ohio farmer for growing wheat on 12 more
acres than he was
to under the Agricultural Adjustment Act.
The Court relied on Wickard in the 2005 case of Gonzales v Raich,
power of Congress to authorized seizure of
allowed under the laws of California and other
states. The Court
in Gonzales noted
use of medical marijuana had a cumulative effect
on the black market
test also convinced the Court to uphold provisions
of the 1964 Civil
Act that required the 216-room Heart of Atlanta
Motel to rent its rooms
to persons regardless of race (Heart of Atlanta
vs U. S.)
outlawed racial discrimination at small
restaurants such as
Ollie's Bar-B-Q in Birmingham (Katzenbach vs
1971, legislation making loansharking a federal
crime was upheld on a
basis (Perez vs U. S.) . The Heart of
Atlanta, McClung, and
Perez cases led to speculation that perhaps
any activity might be
under a loose application of the cumulative
Moreton Rolleston Jr., owner of the Heart of Atlanta motel
(photo: Wayne Wilson/Leviton-Atlanta)
In 1995, however, the Supreme Court--for the first time in more than half a century--invalidated a federal law on the ground that it was outside the scope of the commerce power. In U. S. vs Lopez the Court, by a 5 to 4 vote, found unconstitutional a provision of the Gun-Free School Zone Act that made it a federal crime to possess a gun (even one that never traveled across state lines) within a thousand feet of a school ground. It was unclear whether the government lost because the Congress failed to make adequate factual findings about the impact of school gun violence on interstate commerce or whether the Court was convinced that the interstate impact of possessing guns near schools had only an insignificant effect on interstate commerce. The four dissenters argued that it was sufficient for the Congress to show it had a rational basis for finding a significant effect on interstate commerce.
In U. S. vs Morrison (2000) the Court considered a suit brought by a former student of Virginia Poytechnic Institute who alleged she was raped by two university football players. The defendant players and university argued that the Violence Against Women Act, which allowed victims of gender- motivated violence to bring federal civil suits for damages, was outside of the scope of the commerce power. The Court agreed with the defendants, even though in this case Congress had made specific findings that gender-motivated violence deterred interstate travel, diminished national productivity, and increased medical costs. The Court concluded that upholding the Violence Against Women Act would open the door to a federalization of virtually all serious crime--as well as family law and other areas of traditional state regulation. The Court said that Congress must distinguish between "what is truly national and what is truly local"--and that its power under the Commerce Clause reaches only the former. In a concurring opinion, Justice Thomas went even further, urging abandonment of "the substantial effects" test.
closely watched case of National
Federation of Independent Business v Sebelius(2012),
the Court considered whether the Affordable Care
Act of 2010, the Obama Administration's
signature piece of legislation was
constitutional. The Court, on a 5 to 4
vote, found that the individual mandate
provision of the Act, which required all persons
to buy health insurance or pay a penalty, was
outside of Congress's powers under the Commerce
Clause. (The individual mandate, also on a
5 to 4 vote, survived, however, as a valid
exercise of Congress's taxing power.)
Chief Justice Roberts concluded that the
Commerce Clause gave Congress no power to
regulate inactivity (here, the decision of an
individual not to buy health insurance.)
To allow such a power, Roberts argued, would
give almost limitless power to Congress because
there are "an infinite number" of things people
do not do everyday. Congress might even,
Roberts wrote, order people to buy
broccoli. The four dissenters (Ginsburg,
Sotomayor, Breyer, and Kagan) dissented on the
Commerce Clause question, accusing the majority
of returning to the categorical approach that
had properly been long abandoned by the
Court. In the view of the dissenters, the
failure of healthy individuals to buy health
insurance had obvious and substantial effects on
the health care market, which represents almost
one sixth of the U.S. economy. The
dissenters argued that precedents such as Wickard v Filburn
supported the exercise of power.
Article I, Section 8 gives Congress the power to "lay and collect taxes, duties, imports, and excises." The Constitution allows Congress to tax in order to "provide for the common defense and general welfare." The Court has flip-flopped on the issue of whether Congress has the constitutional power to tax in order to accomplish regulatory goals that would otherwise be outside of the scope of its enumerated powers. In Bailey vs Drexel Furniture (1922), the Court invalidated a 10% tax on the annual profits of employers who knowingly employ child labor. The tax, imposed after an earlier attempt to block the interstate transportation and sale of products produced by child labor was struck down in Hammer, was seen by the Court as an unconstitutional attempt to make an end-run around its earlier decision. The Court reversed its ban on taxes serving primarily regulatory (rather than revenue-producing) goals in Steward Machine (1937), which upheld a tax on employers designed to encourage states to enact unemployment compensation schemes. In Kahriger (1953), the Court upheld a law requiring bookies to register and pay on tax on all wagers--even though the tax had the regulatory goal of wiping out bookmaking operations and could not be expected to produce significant
In perhaps the most significant taxing power case ever decided, the Court ruled in National Federation of Independent Business v Sebelius (2012) that the so-called "individual mandate" (generally considered a requirement that individuals purchase health insurance) contained in the Affordable Care Act could be sustained as a tax, even though the requirement was outside of Congress's power to regulate commerce. Writing for five members of the Court, Chief Justice Roberts held that even though proponents of the Act consistently said a penalty, not a tax, would apply to individuals who failed to purchase insurance, it still operated as a tax and that a functional analysis should control. The Court noted that failure to purchase insurance required a payment to the IRS, that no criminal penalties attached to failure to purchase insurance, and that the cost of the tax would, in most cases, be less than the cost of buying insurance. In sum, the law did not make it unlawful to purchase insurance, allowing individuals a choice of paying a tax instead. Roberts also reaffirmed that the Congress may seek to achieve regulatory goals through its taxing power that it might not be able to achieve under its other Article I powers. Justices Kennedy, Alito, Scalia, and Thomas dissented, arguing that the taxing power could not sustain the mandate.
In the 1987 case of South Dakota vs Dole, the Supreme Court considered a federal law that required the Secretary of Transportation to withhold 5% of a state's federal highway dollars if the state allowed persons less than 21 years of age to purchase alcoholic beverages. South Dakota, which allowed 18-year-olds to drink and stood to lose federal funds for highway construction, sued Secretary Dole, arguing that the law was not a constitutional exercise of the power of Congress to spend--but rather was an attempt to enact a national drinking age. In upholding the federal law, the Court announced a four-part test for evaluating the constitutionality of conditions attached to federal spending programs: (1) the spending power must be exercised in pursuit of the general welfare, (2) grant conditions must be clearly stated, (3) the conditions must be related to a federal interest in the national program or project, and (4) the spending power cannot be used to induce states to do things that would themselves be unconstitutional. The Court considered--perhaps unrealistically--the grant condition to be a financial "inducement" for South Dakota to enact a higher drinking age rather than financial "compulsion" to do so--suggesting the possibility of a different result if a higher percentage of funds had been withheld. In dissent, Justice O'Connor argued that spending conditions should be found constitutional only if they related to how the federal grant dollars were to be spent.
In 2012, the Court considered whether provisions of the Affordable Care Act, which withheld federal funds from states that failed to expand Medicaid coverage in specified ways, was within the power of Congress under the Spending Clause. In National Federation of Independent Business v Sebelius, the Court held that it was unconstitutional to threaten states with the withholding of all federal Medicaid funding, including their existing funding, for failing to expand coverage in the ways Congress sought to encourage. Chief Justice Roberts, in a part of his opinion joined by Justices Breyer and Kagan, concluded that federal funds withheld, representing perhaps 10% of a state's entire budget, was so substantial that states would have no real choice but to give into Congress's demands. As a result, seven justices agreed that the Affordable Care Act's Medicaid expansion provisions violated the principle that the spending power can not be used to coerce states into enacting legislation or participating in a federal program. The Court distinguished South Dakota v Dole, noting that the funds potentially lost by South Dakota in that case representing only one-half a percent of the state's budget.
THE PROPERTY CLAUSE POWER
In 1976, a dispute over 19 wild burros rounded up on federal land and sold by New Mexico's Livestock Board reached the Supreme Court (New Mexico vs Kleppe). The Department of Interior argued the New Mexico's action violated the Wild Free-Roaming Horses and Burros Act, while New Mexico countered that the Act exceeded the power granted to Congress by the Property Clause of Article IV, Section 3. New Mexico contended that Congress could regulate only those state actions on federal land that threaten to damage public lands. The Court, however, rejected this narrow interpretation. Congress has the power to enact "needful" regulations "respecting" the public lands and--according to the Court---what is a "needful" regulation is a decision "entrusted primarily to the judgment of Congress." The Court concluded the federal government "has a power over its own property analogous to the police power" of the states. The Court did "not think it appropriate [in Kleppe]...to determine the extent to which the Property Clause empowers Congress to protect animals on private lands."
COMMERCE CLAUSE QUESTIONS
2. The Constitution gives Congress the power to regulate commerce "among" the several states. Does that mean "between" the states, or could it also mean "among the people"--that is, even within a state?
3. What would have been the economic future of the United States if Gibbons had gone the other way?
4. Which of the two basic approaches to Commerce Clause analysis is better, the "empirical test" (e.g., "substantial effects") or the categorical approach that seeks to label effects as "direct" or "indirect" or activities as "local" or "national." What are the advantages and disadvantages of each approach?
5. Does the power to "regulate" commerce include the power to ban outright certain articles of commerce--such as lottery tickets, firecrackers, hand grenades, or marijuana? 12. Is taking a woman across state lines for immoral purposes "commerce"? (The Court thought so in a decision upholding the constitutionality of the Mann Act.)
6. Should the Court examine the motive of Congress in enacting legislation under its commerce power, or just analyze the connection of the regulation to interstate effects? In Hammer vs Dagenhart, the Court was influenced by its conclusion that Congress really legislated because it disapproved of child labor, rather than out of any genuine concern for how child labor was affecting the national economy or the dangers posed by articles produced by child labor. Should the motive of Congress been a factor?
7. N.L.R.B. vs Jones, along with U. S. vs Lopez years later, is generally considered one of the two key turning points in Commerce Clause jurisprudence. What makes it so?
8. Does the "cumulative effects" approach of Wickard represent a major expansion of the "substantial effects" test as employed previously?
9. After McClung and Heart of Atlanta Motel, could you imagine any eating establishment or motel that would be outside the reach of Congress's power under the Commerce Clause to enact civil rights laws prohibiting discrimination against patrons or guests?
10. Lopez and Morrison raise serious questions about the ability of Congress to enact laws providing federal punishment or federal remedies for conduct traditionally regulated under state criminal codes. Which of the following are likely to be upheld?: (1) a law making "carjacking" a federal crime? (2) a law making "drive-by shootings" a federal crime? (3) a law making it a federal crime to carry out any action designed to terrorize? (4) a law making child molestation a federal crime? (5) a law making child pornography a federal crime?
11. How does Congress distinguish, as Morrison requires it to do, between "what is truly national and what is truly local."?
12. National Federation of Independent Business draws a line between commercial activity, which Congress can regulate, and inactivity, which it cannot. Many economists argue that any example of inactivity can be re-described as another sort of activity, but Justice Roberts says the Framers were practical men, not students of metaphysics, and would have appreciated the difference. Do you think he is right?
13. The dissenters suggest that the inactivity/activity line is just a return to the discredited categorical approaches of the past, and that the Court should have focused on the impact that people without health insurance were having on the overall market. Will this categorical distinction last, and how much of a limitation will it prove to be on attempts by Congress to enact social welfare legislation?
TAXING & SPENDING POWERS-- QUESTIONS
2. Do the Court's recent Commerce Clause decisions give reason to think the Court will also tighten up the Congress's use of its taxing and spending powers?
3. In South Dakota vs Dole, is it clear that South Dakota's lower drinking age jeopardized federal interests in the national highway program? If so, how substantially?
4. Could Congress condition the receiving of federal dollars to fight crime on a state's having enacted the death penalty? How--if at all--would such a condition differ from the condition upheld in South Dakota vs Dole?
5. What result in South Dakota vs Dole if South Dakota stood to lose all federal highway money if it didn't raise its drinking age? What if it stood to lose 30%?
6. Does the Court's decision in National Federation of Independent Business v Sebelius suggest that Congress will increasingly rely on its taxing power to accomplish goals it may not be able to accomplish under its commerce power?
7. Do you think that the description of a mechanism in an act as a "penalty" not a "tax" should control, or was the Court correct to use a functional analysis to conclude that the individual mandate penalty/tax operated as a tax--no criminal punishment, for example, for not purchasing health insurance so long as you make the payment to the IRS (and the amount paid will generally be less than the cost of insurance)?
8. Does the Court's ruling in the Affordable Care Act case suggest the Court will be closely scrutinizing large federal grant programs in the future? Note that SEVEN justices agreed that withholding federal funds from states that failed to expand their Medicaid coverage was outside of Congress's Spending Clause power.
THE PROPERTY CLAUSE-- QUESTIONS
2. Does the Property Clause empower Congress to regulate private activities on private land that adversely effect public lands, such as air pollution from a nearby plant, bright lights from neon advertising, or noise from a racetrack?
3. Does Article IV, Section 3 give Congress the power to regulate any behavior of residents of U. S. Territories that it chooses to, provided no other provision of the Constitution is offended? For example, could the Violence Against Women Act provision invalidated in Morrison be enforceable in U. S. Territories (such as Guam or Puerto Rico), even though it can't be in the fifty states?