Introduction [73]

 

The Vesting Clause in Article I vests all legislative powers “herein granted” in Congress.  The limitation of powers conferred to those “herein granted” distinguishes the Vesting Clause in Article I from the parallel clauses in Articles II and III. It also suggests that Congress’ powers are simply those the Constitution grants.

                       

Most powers of Congress are set forth in Article I section 8, although others appear elsewhere (e.g. the Senate’s power to advise and consent to certain appointments and to treaties is in Article II, Congress’ power to enforce various amendments to the Constitution is set forth in the amendments in question).

 

§3.01   Implied Powers [73-76]

 

The Constitution’s structure suggests the existence of implied powers beyond those enumerated in the Constitution. In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), Chief Justice Marshall held that the Constitution implicitly authorized Congress to take the means necessary to give effect to the powers granted. The Federalist Papers suggested that Marshall’s conclusion was consistent with Madison’s intent (see No. 44).

 

In addition the Necessary and Proper Clause provided textual support for Marshall’s conclusion. Through an elaborate and ingenious argument, Marshall argued that the Clause expanded rather than limited Congress’ enumerated powers and conferred power to take action which was useful even though not indispensable.

 

The test for action under the Clause was stated as follows: “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.”

 

The Necessary and Proper Clause has proved to be a source of considerable additional powers.  It authorizes action regarding not only the powers set forth in Article I but throughout the Constitution.

 

§3.02. General Welfare [76]

 

“Police power” may be used to promote the public welfare.

 

§3.03   Taxing Power [77-79]

 

            [1]    Broad Power of Taxation For National Purposes

 

Congress is given power to tax to provide for the common defense and the general welfare. As such Congress has broad power to tax.

 

            [2]  Purpose of Taxation

 

Although some cases earlier in the 20^th century suggested that Congress could not use the taxing power as a pretense to regulate an activity rather than raise revenue and could not reach activities it could not otherwise regulate, these limitations have been rejected. Thus in United States v. Kahriger, 345 U.S. 22 (1953), the Court upheld a tax on bookies even though the statute’s primary purpose was to regulate the activity, not to generate revenue.

 

Nonetheless, Congress cannot tax in a way which would otherwise violate some constitutional prohibition (e.g. a tax on newspapers alone).

 

§3.04   Spending Power [80-81]

 

Prior to 1937, cases held that Congress could not spend for ends it could not directly achieve.  More recently that restriction has been abandoned.

 

In South Dakota v. Dole, 483 U.S. 203 (1987) the Court upheld a federal statute that reduced the amount of federal highway funds distributed to states that allowed minors to purchase alcohol.  The Court held that Congress could attach conditions to spending grants subject to the following restrictions:

 

      a. The expenditures had to be for the general welfare.

 

      b. Congress had to state conditions clearly.

 

      c. Conditions had to relate to the federal interest in the national program.

 

      d. Expenditures could not violate any independent constitutional requirement.

 

The General Welfare Clause is a limitation on the power to tax and spend, not a separate source of Congressional power.

 

§3.05   Fiscal Powers [81-83]

 

The Constitution empowers Congress to borrow and coin money and regulate the value thereof. McCulloch established the power of Congress to establish banks with power to issue notes.           

 

§3.06   Citizenship [83-85]

 

            [1]  Becoming and Remaining a Citizen

                       

The Fourteenth Amendment makes citizenship depend solely on birth or naturalization. Congress is empowered to “establish a uniform rule of naturalization.”  Art. I, sec. 8, cl. 4.

 

§3.07   Treaty Power [86-87]

 

The Constitution provides that the President and Senate share the treaty power. A treaty becomes part of the law of the land to which the Supremacy Clause assigns priority vis a vis inconsistent state law. Federal statutes and treaties have equal priority with the latter in time controlling the prior.

 

Missouri v. Holland, 252 U.S. 416 (1920), suggested that the President and Senate could achieve ends through treaty which were beyond the constitutional power of Congress. It seems unlikely the Court would adhere to this result today.  In Reid v. Covert, 354 U.S. 1 (1957), the Court held, in a plurality opinion, that a foreign agreement could not transcend constitutional bounds.

 

§3.08   Civil Rights Enforcement and State Action [87-92]

 

The Thirteenth, Fourteenth and Fifteenth Amendments confer important powers on Congress to enforce the terms of the Amendments. The Fourteenth and Fifteenth Amendments forbid certain types of state action.

 

State action is a broad term which includes legislative and executive action as well as some judicial conduct and even some private action occurring under state authority. State action can occur when a private party discharges some governmental function.  Accordingly, courts have held that a criminal defendant’s use of peremptory jury challenges in a racially discriminatory fashion can constitute state action.  Similarly, a political party which conducted a primary election was found to be committing state action.

 

There are, however, limits to the doctrine.  Thus, the Court refused to find state action when a private club refused to serve African Americans.  The fact that it had a state issued liquor license was not sufficient to make it a public entity for purposes of the Fourteenth Amendment.

 

§3.09   Congressional Enforcement [92-94]

 

Although Congress has broad power to enforce the Civil War Amendments, City of Boerne v. Flores, 521 U.S. 507 (1997), held that it could not expand the substantive sweep of the Amendments.  In Boerne, the Court held that the Religious Freedom Restoration Act extended beyond Congress’ power because it revised the constitutional norm rather than simply providing a remedy for an existing norm.  The Court reasserted that Marbury empowered the Court to define the substantive scope of the Constitution.

 

§3.10 Involuntary Servitude [94-95]

 

Congressional power to enforce the Thirteenth Amendment extends far beyond the cases involving actual imposition of slavery or involuntary servitude and is not limited to protection of any particular race.