1. Fall 2000Congressional Power1 Analytical Questions –Source of Power –Scope of Power –Limitations on Power Structural Concerns (federalism) –federal usurpation of state power –federal interference with state functions

2. Fall 2000Congressional Power2 Source of Cong’l Power Article I, § 1 –All legislative Powers herein granted shall be vested in a Congress of the United States.... contrast with Art. II, § 1: The executive Power shall be vested in a President of the United States... contrast with Art. III, § 1: The judicial power of the United States shall be vested... Article I, § 8 –The Congress shall have Power to... [17 clauses]

3. Fall 2000Congressional Power3 Locus of Sovereignty Did the Constitution emanate from the States or the People? –Why is this an important question? –How answered Ratification Political Theory Documentation Who is “sovereign” in America? –The States –The national government –The People

4. Fall 2000Congressional Power4 Doctrine of Enumerated Powers Origins of limited national government Does enumeration preclude incidental or implied powers? –compare Articles of Confederation ClickClick –Marshall: “We must never forget that it is a constitution we are expounding”

5. Fall 2000Congressional Power5 Subjects of Federal Power Examine the 17 clauses in Art. I, § 8 –Administrative items (relating to functioning of federal gov’t) –National sovereignty foreign relations military –Commerce & Finance taxes, banking, bankruptcy, mail, intel. property interstate/foreign/indian commerce clause

6. Fall 2000Congressional Power6 Commerce Clause Major failing of Articles of Confederation Annapolis convention (1786) –"to take into consideration the trade of US” –failed for lack of quorum, but reported: "important defects in the System of the Federal Government... of a nature so serious as... to render the situation of the United States delicate and critical, calling for an exertion of the united Virtues and Wisdom of all the members of the Confederacy."

7. Fall 2000Congressional Power7 Scope of Power Should Congress’ Power be read broadly or narrowly? –broad scope diminishes state power –narrow scope leaves states more power –narrow scope yields less total regulation

8. Fall 2000Congressional Power8 Doctrine of Implied Powers Essential in a constitution Basis of doctrine –inferred from the nature of the instrument –inferred from the language of the const. only great powers are specified “necessary and proper” clause –gives sanction to implied powers doctrine rather than creating “new or independent powers” (Hamilton) –inferred from the structure of the const. Compare Art. I, section 8 with section 9

9. Fall 2000Congressional Power9 Interpretive Methodologies Tools of construction –text –history (legislative/framers’ intent) –structure –theory –judges’ personal values and ideology

10. Fall 2000Congressional Power10 Textualism Dictionary definition of textual terms may not supply the answer –“necessary” can have conflicting definitions absolutely necessary appropriate Does Preamble help?

11. Fall 2000Congressional Power11 Originalism (intent) Have much power did the framers intend the federal government to have? –A feeble national gov’t and strong state gov’ts? –intent to cure limitations of Articles

12. Fall 2000Congressional Power12 Structuralism Structure of the constitution –Placement and purpose of N&P clause Structure of the nat’l gov’t that is created –Separation of Powers who determines whether a particular MEANS is “necessary” Sructure of the republic that is created –meaning and purpose of federalism

13. Fall 2000Congressional Power13 Theory A government of strictly construed narrow powers could not effectively function –again compare Articles

14. Fall 2000Congressional Power14 Marshall’s Test “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” ENDS must be enumerated MEANS must be “plainly adapted” (reasonable) –Cannot transgress prohibition in text

15. Fall 2000Congressional Power15 Separation of Powers How does Court’s interpreation of N&P clause affect the separation of powers in the federal gov’t? –“the degree of [the law’s] necessity is to be discussed in another place.” –Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the gov’t, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial dep’t, and to tread on legislative ground.”

16. Fall 2000Congressional Power16 Maryland’s Tax on Bank US Where do states get the power to tax? Does the const. explicitly withdraw this? –See Art. I Sec. 10, par. 2 & 3. Does the Tax conflict with federal law? –Express conflicts –Implied conflicts

17. Fall 2000Congressional Power17 Supremacy & Implied Preemption Does the tax negate the federal act? –“The power to tax is the power to destroy” –Can’t the states be trusted to tax reasonably? Even if reasonable, does a state tax deny federal supremacy? –States never possessed the right to tax the superior gov’t –The const. need not negate such a right

18. Fall 2000Congressional Power18 On Just Theory... Taxation of foreign objects –Taxation without representation –Non-discriminatory taxes virtual voice theory of representation Modern rule –No state taxes on federal instrumentalities –Taxes permitted on employees/contractors