1 / 77

Chapter III

Chapter III. Powers of the National Government. A Useful Distinction. Allocation of Constitutional Authority Among the Branches Vesting of Constitutional Power in the National Government. A Useful Distinction. Allocation of Constitutional Authority Among the Branches Congress Legislate

johana
Download Presentation

Chapter III

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Chapter III Powers of the National Government

  2. A Useful Distinction • Allocation of Constitutional Authority Among the Branches • Vesting of Constitutional Power in the National Government

  3. A Useful Distinction • Allocation of Constitutional Authority Among the Branches • Congress • Legislate • Impeach • Advice & Consent • Executive • Laws be Faithfully Executed • Commander in Chief • Negotiate Treaties • Judicial • Judicial Review

  4. A Useful Distinction • Vesting of Constitutional Power in the National Government • Enumerated Powers • Implied Powers of Nationhood

  5. Congress shall have Power to: Tax & spend for the general welfare Borrow money Regulate interstate & foreign commerce Establish rules for naturalization & bankruptcy Coin money & adopt standards for weights & measures Punish counterfeiting Establish post offices & post roads Provide for copyrights & patents Constitute tribunals inferior to the Supreme Court Enumerated Powers: Article I, § 8

  6. Congress shall have Power to: Define & punish piracies, felonies on the high seas and offences against the law of nations Declare war, grant letters of Marque and Reprisal & make rules concerning captures on land and water Raise and support armies Provide & maintain a navy Provide for a militia Exercise authority over seat of government See also Article IV, § 3: Territories & property of US Enumerated Powers: Article I, § 8

  7. Enumerated Powers:Enforcement Powers in Civil Rights Amendments • Amendment XIII: Slavery prohibition • Amendment XIV: Due process, equal protection, privileges or immunities, citizenship • Amendment XV: Race & voting • Amendment XIX: Gender & voting • Amendment XXIV: Poll tax prohibition • Amendment XXVI: Age & voting

  8. McCulloch v. Maryland (1819) • Basic facts: • Congress establishes the Second Bank of the United States (a central bank). • State of Maryland imposes a tax on the Bank. • McCulloch, Treasurer of the Baltimore branch of the Bank refuses to pay tax. • McCulloch is convicted of violating the state law. • Maryland Court of Appeals affirms his conviction & upholds the constitutionality of the state law.

  9. McCulloch v. Maryland (1819) • Is McCulloch’s claim justiciable? • In determining whether McCulloch’s conviction should be affirmed, what basic issue must the Court resolve?

  10. McCulloch v. Maryland (1819) • Does the incorporation of a bank come within the enumerated powers of Congress (i.e., of the United States)? • Definitional problem? • Structural problem? • External problem? • If the answer to that question is “yes”, what follows from that answer?

  11. McCulloch v. Maryland (1819) “[The] government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, ‘anything in the constitution or laws of any state to the contrary notwithstanding.” (page 128) WHAT DOES THIS MEAN?

  12. McCulloch v. Maryland (1819) • Is there an enumerated power to create a national bank? To create corporations generally? • If there is no specific power, does Marshall rely on an implied power? • What does he focus on in terms of the definitional scope of powers vested in the national government? (pages 128-129) • How would you characterize this argument?

  13. McCulloch v. Maryland (1819) The Necessary & Proper Clause: “To make 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, or in any Department or Officer thereof.”

  14. McCulloch v. Maryland (1819) • What is Maryland’s argument with respect to the Necessary & Proper Clause? • What is Marshall’s response? • Note his interpretive techniques. • Logic • Text close focus • Text comparative • Text location • Text apparent operation • Consequences

  15. McCulloch v. Maryland (1819) • Who decides whether the means adopted by Congress fall within the scope of the Necessary and Proper Clause? • What standard of review? “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.” (page 131)

  16. Enumerated Powers • Art. I, § 8 • Art. IV, § 3 • Civil Rights Amendments • Necessary & Proper Clause • Pertains to Authorities & Powers

  17. McCulloch v. Maryland(Part II) • Part II is premised on the validity of the congressional creation of the Second Bank of the United States. • Question in Part II: May the State of Maryland impose a tax on a branch of the Bank?

  18. McCulloch v. Maryland(Part II) • The power to tax is said to be “concurrent.” What does this mean? • Does anything in the Constitution or the charter of the Bank expressly prohibit states from imposing a tax on a federal instrumentality?

  19. McCulloch v. Maryland Marshall’s Axiom: “[The US] constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them.”

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

  21. McCulloch v. Maryland • Is the state’s power to tax incompatible with the national government’s power to create and preserve the Bank of the US? • “The only security against the abuse of this power [to tax] is found in the structure of the government itself.” ????? • Why doesn’t the previous principle sustain the state’s power here?

  22. McCulloch v. Maryland • What generic type of constitutional argument is Marshall engaging in? • Definitional • Structural • External • Federalism & Supremacy • Compare constitutional vision of Marbury with vision of McCulloch

  23. U.S. Term Limits, Inc. v. Thornton(1995) • Amendment 73: How does it operate? • Two questions presented • Does the Constitution forbid States from adding to or altering the “qualifications” provided in the Constitution? • If so, does Amendment 73 violate this principle?

  24. U.S. Term Limits, Inc. v. Thornton(1995) • Three constitutional issues: • The Elections Clause • The Tenth Amendment • The Qualifications Clause • Compare the majority & the dissent • Which opinion reflects McCulloch & which rejects it or at least adopts a more restrained view of it?

  25. The Commerce Power A Definitional Problem: • What is the scope of the commerce power? • Does the action being challenged fall within that defined scope?

  26. The Text: Art. I, § 8, cl. 3 “Congress shall have the Power To . . . Regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.”

  27. Chief Justice Marshall • Marbury v. Madison • Martin v. Hunter’s Lessee (recused) • McCulloch v. Maryland • Gibbons v. Ogden

  28. Gibbons v. Ogden (1824) New Jersey New York

  29. Gibbons v. Ogden (1824) • Ogden – Exclusive Right (NY) • Gibbons – License (US) • NY Courts rule for Ogden & enjoin Gibbons • Appeal to US Supreme Court • Marbury v. Madison • Martin v. Hunter’s Lessee • McCulloch

  30. Gibbons v. Ogden (1824) Two potential issues of constitutional law: Definitional Structural What is the “definitional” issue stated in terms of this particular controversy?

  31. Gibbons v. Ogden (1824) • Commerce • What is it? • Among the several States • What is included? • What is excluded? (Reserved to the states.) • Regulate • Who decides?

  32. Gibbons v. Ogden (1824) Was the grant of the federal “coastal” license a valid exercise of the commerce power? Why? How would you describe the defined scope of the Commerce Clause after Gibbons?

  33. Post-Gibbons & Pre-New Deal • The problem of state power over internal commerce: • Supremacy • Concurrent authority • The “enclave” theory: • From “concurrent” to exclusive • The Tenth Amendment • Hammer v. Dagenhart

  34. Post-Gibbons & Pre-New Deal • Emerging theories • Stream of commerce • Protective power • Commerce-Prohibiting • Direct & Indirect

  35. NLRB v. Jones & Laughlin Steel Corp.(1937) • NLRA grants employees of businesses affecting ISC the right to engage in collective bargaining • NLRB finds that J&L engaged in unfair labor practices as defined by the NLRA • Discriminated against union members (fired them) • Engaged in anti-union coercion of employees • Cease & desist order issued

  36. NLRB v. Jones & Laughlin Steel Corp.(1937) • J&L argue: • NLRA not a valid exercise of the commerce power • Beyond the defined scope of the power • Impermissible regulation of labor & production • Manufacturing is not “commerce” • Reserved powers – state enclave • Note: FDR was in his second term, but had appointed no members to the Court.

  37. NLRB v. Jones & Laughlin Steel Corp.(1937) • Court’s response • Affecting commerce rationale • Stream of commerce • Enclave theory • Direct & Indirect • Compare the law of “Personal Jurisdiction”

  38. NLRB v. Jones & Laughlin Steel Corp.(1937) • What is the defined scope of the ISC power after Jones & Laughlin? In other words, how would you measure the constitutionality of an exercise of the ISC power?

  39. United States v. Darby (1941) • By 1941, FDR had appointed 8 of the 9 sitting Justices; the only non-FDR appointee was Justice Roberts who had been the “swing” vote in Jones & Laughlin.

  40. United States v. Darby (1941) • Fair Labor Standards Act • Prohibits the shipment in ISC of goods produced under “substandard” labor conditions (minimum wage & maximum hours) • Prohibits substandard labor conditions manufacturers whose products are intended for shipment in ISC

  41. United States v. Darby (1941) • Prohibition on Shipment in ISC • On what basis does Darby challenge this measure? • On what grounds does the Court reject that challenge? • Enclave theory? (Hammer v. Dagenhart) • What is the defined scope of the ISC power with respect to the interstate shipment of goods or services? Any checks on that power?

  42. United States v. Darby (1941) • Regulation of labor conditions: • On what basis does the Court conclude that this regulation falls within the defined scope of congressional power? (There are two separate rationales.) • What role does the Tenth Amendment play (reserved powers doctrine)?

  43. United States v. Darby (1941) • What is the defined scope of the ISC power post-Darby? • Hint: It’s a two-part test.

  44. Wickard v. Filburn (1942) • Facts: • AAA imposes annual quotas on amount of wheat a farmer may grow. • Nationwide there are 16 “overproducing states” and 32 “underproducing” states • Filburn’s allotment: 11.1 acres • He sows 23 acres (239 additional bushels) • Presumably to be consumed on farm • $117 fine imposed

  45. Wickard v. Filburn (1942) • Does the regulation imposed by the AAA represent a constitutional exercise of the power over ISC? Does it fall within the defined scope of that power? • Filburn argues: • Regulation of production and consumption • Indirect effects

  46. Wickard v. Filburn (1942) • The Court: • Production? • Indirect? • What is the measure of the ISC power? • How does one measure the sufficiency of an effect on ISC? • How does “on-farm” consumption effect ISC? • Isn’t Filburn’s contribution to the effect trivial? • Primary restraint on ISC power?

  47. The Civil Rights Cases (1964) • CRA of 1964 prohibits racial discrimination by private persons in public accommodations. • Cf. Fourteenth Amendment enforcement power & requirement of state action. • Heart of Atlanta Motel v. US: Court upholds application of CRA to private hotel that serves interstate travelers. • Katzenbach v. McClung: Court upholds application of CRA to local restaurant that sells food purchased in ISC.

  48. U.S. v. Lopez (1995) • Gun-Free School Zones Act of 1990 • Begins with the premise of enumerated powers. • “Few and defined” • Recites a brief history of Commerce Clause Jurisprudence, ends with emphasis on outer limits of that power.

  49. U.S. v. Lopez (1995) • Commerce Power: • The channels of ISC • Anything that is itself ISC • Example: the sale of goods interstate • The instrumentalities of ISC • Anything being used to facilitate ISC • Example: interstate railroads • Activity that “substantially” affects ISC

  50. U.S. v. Lopez (1995) • What aspect of the “test” is at issue in Lopez? • What is the government’s argument in support of constitutionality? • Why doesn’t the GFSZA pass the test? • Nature of the activity • Lack of jurisdictional nexus • Lack of findings • Attenuated chain of inferences

More Related