Congressional Power: Part Two

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Congressional Power: Part Two

  1. 1. U.S. Constitutional Law Legislative Powers: The Necessary & Proper Clause Page 1 U.S. Constitutional Law Legislative Powers April 25, 2006
  2. 2. Necessary & Proper Clause [The Congress shall have Power] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [those listed in the Constitution], and all other Powers vested by this Constitution in the Government of the United States, or in any Department thereof. - Article I, Section 8, cl 18 Page 2 U.S. Constitutional Law Legislative Powers April 25, 2006
  3. 3. Limited Federal Power Congress may act only if here is express or implied authority to act in the Constitution. “All legislative powers herein granted shall be vested in a Congress . . . .” Article I States may act unless the Constitution prohibits the action. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States . . . .” Tenth Amendment Page 3 U.S. Constitutional Law Legislative Powers April 25, 2006
  4. 4. Factual Background of McCulloch The Bank of the United States in Philadelphia. Alexander Hamilton argued that the Constitution's implied powers authorized its creation. Page 4 U.S. Constitutional Law Legislative Powers April 25, 2006
  5. 5. Question Presented 1) Does Congress have the authority to create the Bank? 2) Is the state tax on the bank constitutional? Attorneys for McCulloch (Daniel Webster, left) and Maryland (Luther Martin, right) in McCullough vs Maryland Page 5 U.S. Constitutional Law Legislative Powers April 25, 2006
  6. 6. What It Really Means Congress may choose any means, not prohibited by the Constitution, to carry out its express authority. Necessary means useful or desirable, not indispensable or essential. the “provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. This does not equate to limitless authority. Must further enumerated power Must not violate the Constitution. Page 6 U.S. Constitutional Law Legislative Powers April 25, 2006
  7. 7. Placement of the Clause Art I, Sec 8 Art I, Sec 9 Sets forth powers that Contains a list of things Congress has. Congress cannot due. Marshall says the Places limits on Necessary and Proper Congress. Clause is placed here to Marshall says if expand powers. Necessary & Proper Clause as a limited clause, it would have been placed here. Page 7 U.S. Constitutional Law Legislative Powers April 25, 2006
  8. 8. Constitutionality of the Law Power to create a bank (which Marshall says Congress has) also includes power to preserve its existence. Power to tax is power to destroy. Page 8 U.S. Constitutional Law Legislative Powers April 25, 2006
  9. 9. Impact of McCulloch Rejects idea of “compact federalism” Grants Congress expansive powers Limits ability of states to interfere with federal activities. NOTE – in Commerce Clause the question was whether Congress could interfere with state activities. These important points continue today! Page 9 U.S. Constitutional Law Legislative Powers April 25, 2006
  10. 10. Later Cases U. S. vs Gettysburg Elec. Ry. Co. (1896) considered whether Congress had the power to condemn a railroad's land in what was to be Gettysburg National Military Park. Gonzales v. Raich (2005) – Home-grown marijuana case. Scalia's concurring opinion used both Commerce Clause and Necessary & Proper Clause. Page 10 U.S. Constitutional Law Legislative Powers April 25, 2006
  11. 11. The Government and the States Overarching Question – on what topic can States legislate? Constitution enumerates powers of Federal Government Constitution and Amendments sets forth limitations on States. State powers fall somewhere in the middle Two Final Federal v. State areas of law: Supremacy Clause 10th Amendment Page 11 U.S. Constitutional Law Legislative Powers April 25, 2006
  12. 12. Three Groups of Governmental Powers Those granted exclusively to the federal government or expressly denied to the States, also includes implied grants of power. Those exercised concurrently with the States. Supremacy Clause Those reserved to the States exclusively, because they do not fall within enumerated powers of the Congress. 10th Amendment Page 12 U.S. Constitutional Law Legislative Powers April 25, 2006
  13. 13. Supremacy Clause “Constitution and the Laws of the United States which shall be made Prusuance thereof; and all Treaties made, or which shall be made under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby - Article VI, United States Constitution Page 13 U.S. Constitutional Law Legislative Powers April 25, 2006
  14. 14. Two Preemption Areas Federal Law expressly preempts state or local law. Preemption is implied by a clear congressional intent to preempt state or local laws. Field Preemption – congress intends that federal law should exclusively regulate an area (field) of law. Conflict Preemption – situation where there are state and federal law on point, and there is no way for person to comply with both. Page 14 U.S. Constitutional Law Legislative Powers April 25, 2006
  15. 15. Express Preemption Airline Deregulation Act of 1978 - “No State . . . shall enact or enforce any law, rule, regulation, standard or other provision having the force and effect of law relating to rates, routes, or services of any air carrier.” Page 15 U.S. Constitutional Law Legislative Powers April 25, 2006
  16. 16. Field Preemption in July 2000, President Clinton and German Chancellor Schröder signed an executive agreement (the German Foundation Agreement) under which the German government agreed to create a publicly and privately-funded foundation to afford compensation to anyone who had "suffered at the hands of German companies during the National Socialist era." Page 16 U.S. Constitutional Law Legislative Powers April 25, 2006
  17. 17. Tenth Amendment The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. - Tenth Amendment to the United States Constitution. Real question is: Can Federal laws be declared unconstitutional as violating this constitutional provision? Page 17 U.S. Constitutional Law Legislative Powers April 25, 2006
  18. 18. Why Protect State Sovereignty? Decrease likelihood of federal tyranny Probably more relevant in earlier times. Enhance democratic rule by providing government that is closer to the people with more power Allow states to be laboratories for new ideas. Remember the concurring opinion in Lopez? NOTE – you could also say these are reasons to support the modern Federalism movement. Page 18 U.S. Constitutional Law Legislative Powers April 25, 2006
  19. 19. Printz v. United States Brady Handgun Violence Prevention Act Signed November 30, 1993 Page 19 U.S. Constitutional Law Legislative Powers April 25, 2006
  20. 20. Questions What part of the Brady Handgun Violence Prevention Act is at issue in this case? According to Justice Scalia, can the federal government force state courts to enforce federal law? Again, according to Justice Scalia is there in anything in the Constitution or early federal law that indicates that the federal government can impose obligations on state governments to enforce federal law? Does Justice Scalia believe that President Wilson ordered state governments during World War I to enforce the law requiring men to sign up to be potential soldiers (selective service)? Page 20 U.S. Constitutional Law Legislative Powers April 25, 2006
  21. 21. Questions What is the meaning of "dual sovereignty" on page 103? Why is the 10th Amendment important to this discussion? Based on the prior decision of New York v. United States, what does the court say about the federal government's ability to compel States and state officers to enforce federal law? Page 21 U.S. Constitutional Law Legislative Powers April 25, 2006
  22. 22. Federalist Papers The Federalist Papers were written and published during the years 1787 and 1788 in several New York State newspapers to persuade New York voters to ratify the proposed constitution. They consist of 85 essays outlining how this new government would operate and why this type of government was the best choice for the United States of America. http://www.foundingfathers.info Page 22 U.S. Constitutional Law Legislative Powers April 25, 2006

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