The Two Clauses that Gave the Feds POWER “Necessary and Proper clause” (Art I, Sec. 8, Cl. 18) “Commerce clause” (Art I, Sec. 8, Cl. 3)

Necessary & Proper “The Congress shall have Power - 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.”

Necessary & Proper  What does it mean?  Anti-Federalists said it gave the new government unlimited power.  Federalists said it merely allowed the government to exercise powers granted to it by the Constitution.

Necessary & Proper  It was used by the Federalists to create the First and Second Banks of the United States – and ultimately to create the Federal Reserve.  It has also been used to allow all kinds of legislation, such as laws to protect wetlands or to force Japanese-Americans into internment camps during World War II.  So is it unlimited? Or practical?

Commerce Clause “The Congress shall have power... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Commerce Clause  What does it mean?  Clearly, the Framers wanted the federal government – not the states – handling commerce. They didn’t want tariffs or other trade barriers between states, and they did want the power to limit international trade.

Commerce Clause This clause became a gateway to passing all sorts of laws…  Regulating the meatpacking industry.  Limiting work hours, setting minimum wage (FLSA)  Enforcing Civil Rights laws (Heart of Atlanta Motel v. U.S., 1964)

Commerce Clause The Rehnquist Court ruled in 1995 (U.S. v. Lopez) that the commerce clause was not broad enough to allow the national government to establish “gun-free schools zones.” Rehnquist said this law blurred the distinction between what is national and what is local: “This we are unwilling to do.”

On the other hand…  Next we will look at the conflicts involving state and federal drug laws relating to medical marijuana and physician-assisted suicide.  In the marijuana case, Justice Thomas warns that the Commerce Clause puts federalism at risk. If the Congress can limit local sales and use of marijuana, “then it can regulate virtually anything – and the Federal Government is no longer one of limited and enumerated powers.”