Outline: Constitutional Law I - Government - IV - National Power

Constitutional Law I - Government (Spring 2006, Burcham)

IV. NATIONAL POWER

1. Analysis
   1. What is the scope of the power of the federal government to regulate the private realm?
   2. What are the limits on the powers of the states?
   3. Does the Constitution impose any special limitations?
   4. What immunities do states enjoy from lawsuits brought against them to enforce national norms?
2. Basic National Power
   1. Necessary and Proper - “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional …” [McCulloch v. Maryland – State tax on federal bank is tax on operations of whole nation, and thus unconstitutional under Supremacy Clause.]
   2. Supremacy
      1. Constitutional - U.S. Term Limits, Inc. v. Thornton – States lack power to add to Constitutional qualifications for Congress; States may not interpose themselves between the National Government and the people.
      2. Congressional
         1. Exclusive - Gibbons v. Ogden - Where Congressional act defines authority to private vessels to navigate interstate waters, State law prohibiting federally licensed vessels from navigating state waters is repugnant to Constitution.
         2. Concurrent - Cooley v. Board of Wardens of the Port of Philadelphia – Mere grant to Congress of power to regulate commerce did not deprive states of power to regulate pilots, particularly where Congress explicitly leaves this up to States.
3. Commerce Power
   1. Standards of Review
      1. Strict scrutiny - No deference to Congress; tends to be applied to civil rights cases
         1. compelling interest
         2. closely tailored
      2. Intermediate scrutiny - Tends to be applied to gender discrimination
         1. substantial interest
         2. actually advances purpose
      3. Rational basis - close enough for government work
         1. legitimate interest
         2. rationally related
   2. Early Era - See II.B.2.b
   3. Depression Era
      1. Necessary and Proper Clause extends power of Congress to regulate interstate commerce to intrastate activities that affect interstate commerce. [U.S. v. Darby – Congress can regulate minimum wages]
      2. Commerce Clause allows Congress to regulate local, non-commercial activity if it exerts a substantial economic effect on interstate commerce. [Wickard v. Filburn – Congress may regulate home-grown wheat]
   4. Civil Rights Era
      1. Heart of Atlanta Motel, Inc. v. U.S. – Civil Rights Act of 1964 is constitutionally valid in covering motels, because motel clients are travelers in interstate commerce.
      2. Katzenbach v. McClung – Restaurant which obtains food through interstate commerce is subject to Civil Rights Act of 1964, Title II.
   5. Modern Analysis – There are 3 broad categories of activities that Congress may regulate under its commerce power [U.S. v. Morrison – Congress may not regulate gender-related violent crimes under Commerce Clause]:
      1. Use of channels of interstate commerce
      2. Instrumentalities of interstate commerce, or persons or things in interstate commerce
      3. Activities having a substantial relation to interstate commerce [Wickard v. Filburn]
4. Taxing Power – Just because a tax is regulatory in effect does not make it not a tax, as all taxes are regulatory in some way: As long as a tax generates some revenue, Court will not question the motive. [Sonzinsky v. U.S. – Congress may impose an annual firearms dealers tax]
5. Spending Power [South Dakota v. Dole – Congress may withhold a portion (5%) of federal highway funds which a state is otherwise entitled to if it allows purchase or public possession of alcohol by those under 21]
   1. Pursuit of “general welfare” (Congress entitled to considerable deference – Hamiltonian view) [contra U.S. v. Butler]
   2. Conditions imposed “unambiguously”
   3. Conditions related to “federal interest in particular national projects or programs”
   4. Other Constitutional provisions may bar (e.g., coercion of states through reliance on disbursements violates 10th Amendment)
6. War and Treaty Powers
   1. War Powers
      1. War and treaty powers are inherent in sovereignty, and are not to be found in the constitution. [U.S. v. Curtiss-Wright Export Corp.]
      2. War powers do not necessarily end with cessation of hostilities. [Woods v. Cloyd W. Miller Co. – Rent control]
   2. Treaty Powers
      1. Congress may enact legislation pursuant to a non-self-executing treaty as long as it does not contravene any prohibitory words in Constitution: Matters not within commerce power can come under treaty power. [Missouri v. Holland – Migratory Birds Act]
      2. Executive agreements have same status as treaties. [U.S. v. Belmont – Pursuant to executive agreement recognizing U.S.S.R., U.S. may bring claims against American company holding deposits of Russian companies seized by Soviets]
      3. Regulations and procedures necessary to carrying out agreements with foreign nations nevertheless may not abridge rights of citizens. [Reid v. Covert – UCMJ provision to court martial military widow for murder of serviceman unconstitutional]
7. Property Power [Kleppe v. New Mexico – “Complete power” Congress has over public lands necessarily includes power to regulate and protect wildlife living there]
8. Regulation of Aliens – Congressional power to regulate admissions is consistent with sovereign powers. [Kleindienst v. Mandel]