Ch 2 NOTES Chemerinsky

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CHAPTER 2: THE FEDERAL LEGISLATIVE POWER

A. INTRODUCTION: CONGRESS AND THE STATES Congress may act only if there is express or implied authority in the Constitution,

whereas states may act unless the Constitution prohibits the action. Article 1 of the Constitution contains affirmative grants of power to Congress.

Congress may not exercise authority unless pursuant to an Article 1enumerated power.

Even where Congress has properly excised an Article 1 power, it may bechecked pursuant to another constitutional imperative.

rotection of !tate sovereignty, i.e. maintenance of the division of powerin the federalist system may re"uire congressional legislation to be nullified. !tates have sovereignty, but they are still sub#ect to the supremacy

clause

Congressional powers$1. Commerce %includes slavery&

'. atents(. )eclaring war*. +aw of Contracts%!ee ! Const art.1, sec. -&

o bill of attainder %law against one person&.

+incoln was the last president to suspend habeas corpus.

THE FRAMEWORK FOR ANALYSIS:McCULLOCH v. MARYLAND Congress created the /ank of the nited !tates in 102 after heavy debate over its

constitutionality. Alexander 3amilton, an advocate for federal power, championedthe bank.

After the /ank4s charter expired in 1-11, ensuing economic troubles led to itsrecreation in 1-15.

Continued economic problems led to additional criticism of the /ank and theenactment of state laws designed to hamper its operation. 6aryland4s tax on the/ank spawnedMcCulloch v. Maryland, which settled Congress4 power to createthe /ank.

6cCollough represented the national bank and was a cashier at their /altimorebranch.

McCulloch v. Maryland%1-1& interpreted the limited power of governmentFacts: 6aryland %& attempted to impose a tax on the federal bank. 7he bank4s cashier,6cCulloch %)& refused to pay the tax. 6aryland %& sued 6cCulloch %)&, arguing that%1& the establishment of the bank is unconstitutional, and %'& the bank may be forced topay state taxes.Issue:1& 6ay Congress constitutionally establish8incorporate a national bank9'& 6ay a state impose restrictions8controls on federally established agencies against the

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federal government4s activities the federal government4s directives9H!"#$%$ :E!Ru!e: nder the Necessa&' a$" P&(e& C!ause %.!. Const. Art. 1 !ec. -, cl. 1-&,Congress may enact legislation so long as its ends are legitimate under the Constitutionand the legislation is appropriate and plainly adapted to those ends.Case Vca)u!a&':ugatory$ ;noperative< uselessNtes: Established that the !upremacy Clause has merit.

WHAT ROLE SHOULD CONCERN OVER PROTECTING STATES HAVE INDEFINING CONGRESS*S POWERS+

7he balance of power8autonomy b8w the !tates and the ational =overnment hasbeen an ongoing point of contention.> ;n settling the "uestion, there are two key issues$

55*2. 3ow pressing is the need to protect state sovereignty18federalism'97hose who oppose #udicial protection of states as a limit on

Congress4s power argue that national legislation is neededto deal with national problems saying the Court should notcircumscribe the scope of Congress4s authority to use the12th Amendment(to invalidate federal laws.

7hose who favor #udicial use of federalism as a constraint onCongress4s power usually identify three benefits ofprotecting state governments$1& decreasing the likelihood of federal tyranny

%7he division of power vertically b8w federal andstate lessens the chance of federal tyranny.&

'& enhancing democratic rule by providing government

that is closer to the people, and%!tates are closer to the people and thus more likelyto be responsive to public needs and concerns.&

(& allowing states to be laboratories for new ideas.

55*1. !hould the courts %#udiciary& protect state autonomy*%by enforcingthe 12th Amendment&, or leave it to the political process9

? @ne view is that #udicial enforcement of federalism as a limit

1!upreme dominion, authority or rule. 7he supreme political authority of independentstate. 7he state itself.

'7he relationship and distribution of power b8w the national and regional governmentsw8in a federal system of government.

(7he powers not delegated to the .!. by the Constitution, nor prohibited by it to the!tates, are reserved to the !tates respectively, or to the people.

*7he right of selfgovernment. A self governing state.

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on Congress is unnecessary b8c the political process willade"uately protect state government interests. %;nterests ofthe states are represented in the national political processand that the nature of that process provides sufficientprotection of state sovereignty, thus making it unnecessaryfor the courts to enforce federalism as a limit on Congress.&

? At the time the Constitution was written states chose!enators and thus were directly represented in Congress.3owever, today, with popular election of !enators, it isharder to argue that states interest are ade"uately protectedin Congress.

7he !upreme Court has defined the scope of Congress4s powers under threecrucial constitutional provisions$

00**. 7he Commerce ower00*B. 7he !pending ower

00*5. B of the 1*th Amendment

,. THE COMMERCE POWER Article 1, - states$ D7he Congress shall have the power . . . to regulate

Commerce with foreign ations, and among the several !tates, and withthe ;ndian 7ribes . . .

!ince the 12Fs, the Court has again narrowed the scope of the commercepower and revived the 12th Amendment as an independent, #udiciallyenforceable limit on federal actions.

7he !upreme Court when making this determination is considering three

"uestions$

. Ghat is commerce9%;s it one stage of business or does it include all aspects of businessand even life in the .!.9&

. Ghat meaning does Damong the several states take9%;s it limited to instances where there is a direct effect on interstatecommerce, or is any effect on interstate activities sufficient9&

. )oes the 12th Amendment act to invalidate congressional actionthat is valid under the Commerce Clause9

%ut another way$ )oes the 12th Amendment limit Congress< ifCongress is acting w8in the scope of the commerce power, can alaw be declared unconstitutional as violating the 12th Amendment9&

7here are * eras of the commerce clause$

-. Te I$#t#a! E&a: Gibbons v. Ogden"e/#$es te C00e&ce P1e&a..a. te Ma&sa!! e&a u$t#! -345

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@gden successfully sued for an in#unction in the : state courts. 7hecourt !upreme Court considered the scope of Congress4s powers and thenwhether the : grant of a monopoly was unconstitutional.

Gibbons v. Ogden%1-'*& )efined commerce narrowlyFacts: @gden %)& was granted an exclusive ferry operations license by : !tate.

=ibbons %& began a competing ferry service and challenges. @gden4s %)&exclusive license under the Commerce Clause.

Issue: 6ay a state legislate in the area of interstate commerce in a way thatconflicts with federal law9 @

Ru!e: 7he federal commerce power extends to all commerce among and b8w thestates and foreign nations, w8 only commerce having connections solelyw8in a single state being unreachable under the commerce power.

C!ass Nte:7he "uestion in this case was if a boat crossing the river was commerce9

)efined commerce as including navigation. !aid it meant commerce going on between states< he

said it is a broader definition than buying and selling it is navigation. )oes he define any limits tothis power9 12th Amendment states real clearly Dpowers not delegated to the .!. by theConstitution nor prohibited to the states are reserved respectively to the states or to the people.

NOTES: Te C00e&ce C!ausehas two general purposes$

Hirst, it provides Congress w8 the authority to affirmatively regulate all commercethat is not exclusively founded and finished w8in the borders of a single state.%7his may be thought of as the positive or regulatory side of the clause.&

!econd, the commerce clause, w8out any affirmative declarations by Congress,acts as a limit on the exercise of state power in the interstate commerce arena.

%7his is often called the dormant commerce clause.& 7o what commerce does this power extend9

7he constitution informs us, to commerce Dwith foreign nations,and among the several !tates, and with the ;ndian tribes.

Ghat is this power9

;t is the power to regulate< that is to prescribe the rule by whichcommerce is to be governed.

I$te&state 6. I$t&astate$I$te&state$ cross state linesI$t&astate$ within a particular state

Gibbbons involved congressional ability to override state actions that

conflict with federal statutory provisions. 7he federal commerce power extends to all commerce among and b8w the

!tates and foreign nations, with only commerce having connections solelyw8in a single state being unreachable under the commerce power.

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7he broad Gibbonsinterpretation was not limited until the late 1-22s whenthe Court began to protect from federal regulation commerce dealing withwholly intrastate business.

Ieep addressing same three issues$1& what is commerce

Ch 2 NOTES Chemerinsky

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