Copyright © 2011 Cengage THE SUPREMACY CLAUSE THE SUPREMACY CLAUSE (Article VI) “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land;” FEDERALISM CASES Parts of the Constitution giving the national government power over the states.

Copyright © 2011 Cengage THE “NECESSARY AND PROPER” CLAUSE THE “NECESSARY AND PROPER” CLAUSE (Article I, Section 8, Clause 18) To make all Laws which shall be necessary and proper Congress has the 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,” FEDERALISM CASES Parts of the Constitution giving the national government power over the states.

Copyright © 2011 Cengage THE COMMERCE CLAUSE THE COMMERCE CLAUSE (Article I, Section 8, Clause 3) Congress has the power: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” FEDERALISM CASES Parts of the Constitution giving the national government power over the states. WHAT IS INTERSTATE COMMERCE?

THE COMMERCE CLAUSE FEDERALISM CASES “Commerce is like a stream flowing through the country, drawing to itself contributions from thousands of scattered enterprises and depositing its products in millions of individual homes.” Wilson text, p. 57 Originally, the Supreme Court distinguished between interstate and intrastate commerce. Over the years, the Court has abandoned efforts to make that distinction. The Court has drastically broadened what is considered to be “interstate commerce.”

FEDERALISM CASES: McCULLOCH V. MARYLAND (1819) Congress had the power to incorporate the bank. Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution. “[I]t may with great reason be contended, that a government, entrusted with such ample [enumerated] powers...must also be entrusted with ample means for their execution.” Necessary and proper clause.

Maryland could not tax activities of the national government engaged in the execution of constitutional powers. “The power to tax is the power to destroy.” “The power to tax is the power to destroy.” The power to destroy = supremacy. States are not supreme thus the Maryland tax is unconstitutional. FEDERALISM CASES: McCULLOCH V. MARYLAND (1819)

Marshall: "the Constitution and the laws made in pursuance thereof are supreme...they control the constitution and laws of the respective states, and cannot be controlled by them." FEDERALISM CASES: McCULLOCH V. MARYLAND (1819) IN A NUTSHELL The Constitution and laws derived from it are supreme to the laws of states. The federal government cannot be controlled by the states. Congress has implied powers to make laws necessary to carry out enumerated powers.

FEDERALISM CASES: GIBBONS V. OGDEN (1824) New York's licensing requirement for out-of- state operators was inconsistent with a congressional act regulating the shipping trade. The New York law was invalid by virtue of the Commerce Clause. Marshall developed a clear definition of the word commerce, which included navigation on interstate waterways. “The power to regulate commerce extends to every species of commercial intercourse…among the several States. It does not stop at the external boundary of a State.”

FEDERALISM CASES: GIBBONS V. OGDEN (1824) He concluded that regulation of navigation by steamboat operators and others for purposes of conducting interstate commerce was a power reserved to and exercised by the Congress. IN A NUTSHELL Congress has the power to regulate interstate commerce. Gibbons added meaning to the legal definition of “interstate commerce.”

FEDERALISM CASES: U.S. v. LOPEZ (1995) The possession of a gun in a local school zone is not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity. Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to regulate interstate trade under the Commerce Clause?

FEDERALISM CASES: U.S. v. LOPEZ (1995) “We have really not been too... strict about what the farthest reach of the Commerce Clause may be. But as I read our cases…I think all of them involve the issue of whether commercial activity of some sort... renting a hotel room, growing a commodity that is used in commerce... whether some commercial activity is interstate commerce or not, and one can say we're prepared to be very broadminded about that. But here you have regulation of something that is not commercial activity in any sense of the word, merely the possession of an item… [Anything] that relates to commerce, the Federal Government can control, securities regulation, all sorts of things…This doesn't relate to commerce, even.” Justice Antonin Scalia

FEDERALISM CASES: U.S. v LOPEZ (1995) “To uphold the Government's contention that [the law] is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would convert congressional Commerce Clause authority to a general police power of the sort held only by the States.” IN A NUTSHELL There are limits to what is accepted under the umbrella of “interstate commerce.” A student bringing a gun to school goes beyond the limit.

FEDERALISM CASES: PRINTZ V. UNITED STATES (1997) Using the Necessary and Proper Clause of Article I as justification, can Congress temporarily require state CLEOs to regulate handgun purchases by performing those duties called for by the Brady Bill's handgun applicant background- checks?

FEDERALISM CASES: PRINTZ V. UNITED STATES (1997) State legislatures are not subject to federal direction. the Necessary and Proper Clause does not empower the federal government to compel state CLEOs to fulfill its tasks - even temporarily In this case by performing background- checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower the federal government to compel state CLEOs to fulfill its tasks - even temporarily. The Brady Bill could not require CLEOs to perform the related tasks of disposing of handgun-application forms or notifying certain applicants of the reasons for their refusal in writing, since the Brady Bill reserved such duties only for those CLEO's who voluntarily accepted them. IN A NUTSHELL The law violated the Tenth Amendment by commanding state agents to carry out a federal regulatory program. Scalia: “Such commands are fundamentally incompatible with our system of dual sovereignty.”

FEDERALISM CASES: MORRISON V. UNITED STATES (2000) “A bipartisan Congress concluded that gender-based violence substantially affects the national economy based on a 4-year legislative record through which it found that gender-based violence and the fear of that discriminatory violence deters women's travel interstate, restricts women's choice of jobs and ability to perform those jobs, reduces national productivity, and increases medical and other costs. “Each of these findings was fully supported by evidence. “For example, Congress heard from women whose batterers kept their partners from working, who wouldn't let them leave home if they did work, or who inflicted visible injuries so that they were afraid to go to work or were physically unable to show up.”

FEDERALISM CASES: MORRISON V. UNITED STATES (2000) Congress lacked the authority to enact a statute under the Commerce Clause or the Fourteenth Amendment since the statute did not regulate an activity that substantially affected interstate commerce. Rehnquist: “If the allegations here are true, no civilized system of justice could fail to provide [Brzonkala] a remedy for the conduct of...Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States." Justice David H. Souter, dissenting, noted that VAWA contained a "mountain of data assembled by Congress...showing the effects of violence against women on interstate commerce.“ 5-4 decision IN A NUTSHELL Violence against women does not substantially affect “interstate commerce.”

THE COMMERCE CLAUSE FEDERALISM CASES Is choosing not to purchase health insurance “participating in commerce?” Ken Cuccinelli Attorney General of Virginia

THE COMMERCE CLAUSE FEDERALISM CASES The health insurance mandate “is unconstitutional because the federal government is claiming that the source of its power for imposing the mandate is the Constitution’s Commerce Clause, which gives the federal government the power to ‘regulate commerce among the several states…’ We argue that if someone isn't buying insurance, then – by definition – he is not participating in commerce. How, then, can the government use the Commerce Clause to regulate non- commerce, ie. regulating inactivity?” Ken Cuccinelli Attorney General of Virginia

THE COMMERCE CLAUSE FEDERALISM CASES “The Commerce Clause is important because ____________________.” It can be used by Congress to pass a wide variety of legislation so long as there is a link to commerce. Many activities are linked to “commerce” and almost all “commerce” can be considered “interstate.” However, there are limits on the types of laws Congress can pass under the Commerce Clause. Lopez, Printz and Morrison all offer specific limits.