VOLUME I: SOURCES OF POWER AND RESTRAINT
Chapter 2:
Congress and The Development of National Power
Chapter Outline
Notes on Excerpted Cases
Questions for Thought and Discussion
Multiple Choice Questions
Essay Questions
Hypothetical Problem for Classroom Discussion or Essay Examination
Introduction of Topic in Lecture
Questions for Website
Chapter Outline:
Structural Aspects of Congress
Constitutional Sources of Congressional Power
The Power to Investigate
Regulation of Interstate Commerce
Taxing and Spending Powers
Congressional Enforcement of Civil Rights and Liberties
McCulloch v. Maryland (1819)
Watkins v. United States (1957)
Barenblatt v. United States (1959)
Gibbons v. Ogden (1824)
Hammer v. Dagenhart (1918)
Carter v. Carter Coal Company (1936)
National Labor Relations Board v. Jones &Laughlin Steel Corporation (1937)
Wickard . Filburn (1942)
Heart of Atlanta Motel v. United States (1964)
Katzenbach v. McClung (1964)
United States v. Lopez (1995)
Gonzales v. Raich (2005)
United States v. Butler (1936)
Steward Machine Company v. Davis (1937)
South Dakota v. Dole (1987)
South Carolina v. Katzenbach (1966)
City of Boerne v. Flores (1997)
Notes On Excerpted Cases:
McCulloch v. Maryland (1819). In 1791 Congress had granted a twenty-year charter to the Bank of the United States. In 1816, five years after the charter expired, Congress established a second Bank of the United States, once again on the basis of the twenty-year charter. For a variety of reasons, including its heavy speculation and alleged fraudulent practices, the Bank soon became the center of political controversy. Eight states passed legislation designed to prevent or discourage the Bank from doing business within their jurisdictions. Maryland chose the latter course by levying a tax on the Bank’s Baltimore branch. A penalty of $500 was imposed for each violation of the tax measure. James W. McCulloch, cashier of the Baltimore branch, violated the Maryland statute by refusing the pay the tax, and a judgment was rendered against him by the Baltimore County Court. Agreeing on a statement of facts, the Maryland attorney general and federal officials converted this legal action into a test case on the constitutionality of the state law and, ultimately, of the Bank itself. Critics of the Bank argued that Congress had no constitutional warrant to charter a national bank and that, in any event, the states were well within their authority to impose a tax on the bank’s operations. The Maryland Court of Appeals upheld the state’s tax on the National Bank, and the United States Supreme Court took the case at McCulloch’s behest. In a strong show of support for the national government, the Supreme Court unanimously reversed the Maryland Court of Appeals. Chief Justice Marshall delivered the Opinion of the Court, asserting that although none of the enumerated powers of Congress explicitly authorized the incorporation of a bank, the Necessary and Proper Clause provided the textual basis for Congress’ action. In keeping with his general view of the Constitution as an adaptable instrument of government, Marshall construed the Necessary and Proper Clause broadly, concluding that it was not confined merely to authority that was indispensable to the exercise of the enumerated powers. Rather, it was sufficient for Congress to adopt “appropriate” means to carry out its legitimate objectives. Among these were the powers to tax, to coin and borrow money and to regulate commerce. In Marshall’s view the national bank was an appropriate means of achieving these broad objectives, and was accordingly permissible under the Necessary and Proper Clause. While the McCulloch case is critically important to the issue of Congressional authority, in particular, the doctrine of implied powers, it is equally significant with respect to basic issues of American federalism. Accordingly, students might wish to reread McCulloch at this point. Chief Justice Marshall provided one of the most forceful statements of national supremacy in this decision, broadly interpreting the Necessary and Proper Clause as conferring on Congress the implied power to establish a national bank. The Court not only upheld expanded Congressional powers, but also struck a blow against states’ rights by invalidating a Maryland law imposing a tax on the Baltimore branch of the Bank. Invoking the Supremacy Clause of Article VI, John Marshall declared that “the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared.”
Watkins v. United States (1957). The Supreme Court reversed a conviction for contempt of Congress in a case where a witness had refused to answer questionsput to him by a subcommittee of the House Un-American Activities Committee. The witness, John Watkins, answered questions about his own beliefs and activities, but refused to discuss the activities of other individuals, saying: “I am not going to plead the Fifth Amendment, but I refuse to answer certain questions that I believe are outside the scope of your committee’s activities.... I do not believe ... that this committee has the right to undertake public exposure of persons because of their past activities.” The Supreme Court reversed Watkins’ conviction primarily on procedural grounds, holding that he had been denied due process of law. Writing for the Court, Chief Justice Warren observed: “The statement of the Committee Chairman in this case, in response to the petitioner’s protest, was woefully inadequate to convey sufficient information as to the pertinency of the questions to the subject under inquiry.” The Court also expressed concern that First Amendment values were being threatened by HUAC’s public hearings. In dissent, Justice Clark accused the majority of “mischievous curbing of the informing function of the Congress.”
Barenblatt v. United States (1959). Lloyd Barenblatt, a former college professor, was subpoenaed by a HUAC subcommittee looking into “communist infiltration” of higher education. Eschewing the 5th Amendment, Barenblatt refused to answer questions on the ground that Congress did not have the authority to inquire into the political beliefs and associations of citizens. Dividing 5-4, the Supreme Court upheld Barenblatt’s conviction for contempt of Congress. Applying a “balancing test,” Justice John M. Harlan (the younger) held for the majority that the public interest in exposing Communist infiltration outweighed the witness’ First Amendment rights in refusing to answer questions. The Barenblatt decision went a long way toward deflating Court-curbing efforts and in Congress.
Gibbons v. Ogden (1824). In this case the Supreme Court struck down a steamboat monopoly granted by the state of New York to Robert Fulton and Robert Livingston. Aaron Ogden succeeded to the ownership of the Fulton-Livingston interest, which extended to commercial steamboat traffic between New York and New Jersey. Thomas Gibbons challenged this exclusive grant on the ground that it interfered with the power of Congress to regulate commerce among the states. Gibbons was licensed under federal law to engage in the “coasting” trade--commerce and navigation in coastal waters--and he contended that this authorization gave him the right to transact business of an interstate nature within the boundaries of New York, irrespective of that state’s monopoly grant to others. In the course of declaring the New York steamboat monopoly unconstitutional, Chief Justice Marshall wrote expansively about the scope of congressional power embodied in the Commerce Clause. In this instance an obvious conflict existed between the federal licensing provision and the state grant of monopoly. Invoking the Supremacy Clause of Article VI of the Constitution, Marshall resolved this conflict in favor of the national government. He went on to assert that the power of Congress over commerce among the states was plenary--that is, full and complete--and subject to no competing exercise of state power in the same area. The federal law under which Gibbons operated was a modest exercise of that plenary power, but it was enough to warrant invalidation of the law because the monopoly granted by the state interfered with the commercial privileges provided by the federal government. Although Gibbons v. Ogden is of great importance as the first Supreme Court decision recognizing broad Congressional authority to regulate commerce, it is also important in illustrating the relationship between state and national regulatory power in this field. In terms of federalism, the thrust of Gibbons v. Ogden was that states could not impede the efforts of Congress to regulate commerce among the states. But the Court stopped short of holding that states had no power whatsoever to regulate interstate commerce.
Hammer v. Dagenhart (1918). A 1916 federal statute prohibited the interstate shipment of goods manufactured in violation of certain standards governing the employment of child labor. Dagenhart, whose two minor children were notified that they were being discharged from the North Carolina cotton mill where they worked, brought suit to challenge the constitutionality of the Act. Hammer, the U.S. Attorney General, appealed from a decree enjoining enforcement of the Act. Relying on the Tenth Amendment, the Supreme Court upheld the injunction and struck down the statute (5-4 vote). Writing for the Court, Justice William R. Day characterized the statute as “an invasion by the federal power” into an area reserved to the states by the Tenth Amendment. In Day’s view, the regulation of the conditions of work in mines and factories was “a purely local matter to which federal authority does not extend.” Dissenting, Justice Holmes insisted that the act did not “meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across state lines they are no longer within their rights.”
Carter v. Carter Coal Company (1936). The Bituminous Coal Act of 1935 created a national commission with authority to regulate wages and prices for the soft coal industry. A 15% tax was levied on all coal sold at the mine and producers who accepted the federal regulations were entitled to a 90% rebate of assessed taxes. Carter, a stockholder in the Carter Coal Co., brought suit to enjoin the company from paying the tax or complying with the code. Dividing 6-3, the Supreme Court declared the Act unconstitutional. This decision reaffirmed the distinction between manufacturing and commerce and extended the principle to the differentiation of mining and commerce.
N.L.R.B. v. Jones-Laughlin Steel Corp. (1937). In a proceeding conducted under the authority of the National Labor Relations Act of 1935, the National Labor Relations Board found that the Jones-Laughlin Steel Corporation had engaged in unfair labor practices. The NLRB ordered the company to cease and desist. Jones-Laughlin refused to comply and the NLRB petitioned the Court of Appeals for an enforcement order. The Court of Appeals denied the petition, holding the order to be beyond the power of the national government. The Supreme Court reversed, dividing 5-4. Writing for the Court, Chief Justice Hughes brushed aside the long-standing distinctions between commerce and manufacturing, between direct and indirect burdens on commerce, and between activities that directly or indirectly affected commerce.
Wickard v. Filburn (1942). This decision nicely illustrates the post-New Deal Supreme Court’s perspective on the Commerce Clause. At issue was the constitutionality of a federal acreage allotment for wheat. The specific issue consisted of a farmer’s raising a wheat crop in excess of the prescribed allotment not for sale or distribution in interstate commerce but for his own consumption. Writing for a unanimous Court, Justice Jackson concluded: “Even if appellant’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect’.”
Heart of Atlanta Motel v. United States (1964). Here the Supreme Court unanimously upheld the public accommodations section of the 1964 Civil Rights Act as a proper exercise of the commerce power. The motel in question did a substantial volume of business based on the interstate travel of its patrons. The Court ruled that its racially restrictive practices could impede commerce among the states and could therefore be appropriately regulated by Congress.
Katzenbach v. McClung (1964). In a companion case to Heart of Atlanta Motel v. U.S., the Supreme Court went even further by recognizing the power of Congress under the Commerce Clause to bar racial discrimination in a restaurant (Ollie’s Barbecue in Birmingham, Alabama) patronized almost entirely by local customers. The Court found a connection with interstate commerce in the purchase of food and equipment from sources outside Alabama. Justice Tom Clark’s opinion for the Court asserted that “[t]he absence of direct evidence connecting discriminatory restaurant service with the flow of interstate food, a factor on which the appellees place much reliance, is not, given the evidence as to the effect of such practices on other aspects of commerce, a crucial matter.” Clark stressed that Congress had “ample basis for the conclusion that established restaurants in such areas sold less interstate goods because of the discrimination, that interstate travel was obstructed directly by it, that business in general suffered and that many new businesses refrained from establishing there as a result of it.” He concluded that Title II was “plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude.” The Court’s decision effectively muted the legal controversy over the constitutionality of Title II and its applicability to places of public accommodation throughout the country.
United States v. Lopez (1995). Here a closely divided Supreme Court invalidated the Gun-Free School Zones Act of 1990, a federal statute criminalizing the possession of a firearm in or within 1,000 feet of a school. As constitutional authority for this statute, Congress had relied on its power to regulate interstate commerce. Five members of the Court rejected this justification. Writing for the majority, Chief Justice Rehnquist, joined by Justices O’Connor, Scalia, Kennedy, and Thomas, asserted that the Gun-Free School Zones Act was “a criminal statute that by its terms [had] nothing to do with ‘commerce’ or any sort of enterprise, however broadly one might define those terms.” Rehnquist observed that “if we were to accept the Government’s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.” In one of his first major pronouncements from the Court, Justice Breyer authored the principal dissenting opinion in the case. Joined by Justices Stevens, Souter, and Ginsburg, Breyer took sharp issue with the majority’s characterization of the issue, insisting that the statute was “well within the scope of the commerce power as this Court has understood that power over the past half-century.” Breyer cited numerous studies in support of his contention that Congress had a rational basis for concluding that gun-related violence in and near schools affected commerce. Moreover, argued Breyer, the courts “must give Congress a degree of leeway in determining the existence of a significant factual connection between the regulated activity and interstate commerce-both because the Constitution delegates the commerce power directly to Congress and because the determination requires an empirical judgment of a kind that a legislature is more likely than a court to make with accuracy....” In a concurring opinion, Justice Thomas commented that at oral argument, the government’s lawyer was asked whether there are any limits to what Congress may regulate under the Commerce Clause. Thomas noted that “the government was at a loss for words.” In taking Justice Breyer’s dissent to task, Thomas further observed that “the principal dissent insists that there are limits, but it cannot even muster one example.”