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Introduction
The United
States is a government of enumerated powers.
Congress, and the other two branches of the federal
government, can only exercise those powers given in
the Constitution.
The
powers of Congress are enumerated in several
places in the Constitution. The most
important listing of congressional powers appears
in Article I, Section 8 (see left) which
identifies in seventeen paragraphs many important
powers of Congress. In this section,
we consider how several of the enumerated powers
of Congress under the original Constitution have
been interpreted.
TAXING POWER
The Congress shall have
Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the
common Defence and general Welfare of the United
States...
Article I, Section 8 gives Congress the power to
"lay and collect taxes, duties, imports, and
excises." The Constitution allows Congress
to tax in order to "provide for the common defense
and general welfare." The Court has
flip-flopped on the issue of whether Congress has
the constitutional power to tax in order to
accomplish regulatory goals that would otherwise
be outside of the scope of its enumerated
powers. In Bailey vs Drexel Furniture
(1922), the Court invalidated a 10% tax on
the annual profits of employers who knowingly
employ child labor. The tax, imposed after
an earlier attempt to block the interstate
transportation and sale of products produced by
child labor was struck down in Hammer, was
seen by the Court as an unconstitutional attempt
to make an end-run around its earlier
decision. In 1925, in Linder v United
States, the Court reversed the conviction
of a doctor who had given three cocaine tablets to
a patient to relieve an addiction. The
conviction, based on a law that imposed a $3 tax
on doctors who prescribed cocaine, rested on the
theory that the law limited the prescription of
cocaine to the treatment of diseases, not
addictions, and that the defendant had given
cocaine tablets to an addict. The Court
concluded that the law could survive only as a
revenue measure, and that the Taxing Power gave
Congress no authority to regulate directly the
practice of medicine--that is, to tell doctors who
had paid the required tax what they can or cannot
do for their patients.
The Court reversed its ban on taxes serving
primarily regulatory (rather than
revenue-producing) goals in Steward Machine
(1937), which upheld a tax on employers
designed to encourage states to enact unemployment
compensation schemes. In Kahriger (1953),
the Court upheld a law requiring bookies to
register and pay on tax on all wagers--even though
the tax had the regulatory goal of wiping out
bookmaking operations and could not be expected to
produce significant revenue.
In perhaps the most significant taxing power case
ever decided, the Court ruled in National Federation
of Independent Business v Sebelius (2012)
that the so-called "individual mandate" (generally
considered a requirement that individuals purchase
health insurance) contained in the Affordable Care
Act could be sustained as a tax, even though the
requirement was outside of Congress's power to
regulate commerce. Writing for five members
of the Court, Chief Justice Roberts held that even
though proponents of the Act consistently said a
penalty, not a tax, would apply to individuals who
failed to purchase insurance, it still operated as
a tax and that a functional analysis should
control. The Court noted that failure to
purchase insurance required a payment to the IRS,
that no criminal penalties attached to failure to
purchase insurance, and that the cost of the tax
would, in most cases, be less than the cost of
buying insurance. In sum, the law did not
make it unlawful to purchase insurance, allowing
individuals a choice of paying a tax
instead. Roberts also reaffirmed that the
Congress may seek to achieve regulatory goals
through its taxing power that it might not be able
to achieve under its other Article I powers.
Justices Kennedy, Alito, Scalia, and Thomas
dissented, arguing that the taxing power could not
sustain the mandate.
SPENDING POWER
The Congress shall
have Power To lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare
of the United States...
In the
1987 case of South Dakota vs Dole, the
Supreme Court considered a federal law that required
the Secretary of Transportation to withhold 5% of a
state's federal highway dollars if the state allowed
persons less than 21 years of age to purchase
alcoholic beverages. South Dakota, which
allowed 18-year-olds to drink and stood to lose
federal funds for highway construction, sued
Secretary Dole, arguing that the law was not a
constitutional exercise of the power of Congress to
spend--but rather was an attempt to enact a national
drinking age. In upholding the federal law, the
Court announced a four-part test for evaluating the
constitutionality of conditions attached to federal
spending programs: (1) the spending power must be
exercised in pursuit of the general welfare, (2)
grant conditions must be clearly stated, (3) the
conditions must be related to a federal interest in
the national program or project, and (4) the
spending power cannot be used to induce states to do
things that would themselves be
unconstitutional. The Court
considered--perhaps unrealistically--the grant
condition to be a financial "inducement" for South
Dakota to enact a higher drinking age rather than
financial "compulsion" to do so--suggesting the
possibility of a different result if a higher
percentage of funds had been withheld. In
dissent, Justice O'Connor argued that spending
conditions should be found constitutional only if
they related to how the federal grant dollars were
to be spent.
In 2012, the Court considered whether provisions of
the Affordable Care Act, which withheld federal
funds from states that failed to expand
Medicaid coverage in specified ways, was within the
power of Congress under the Spending Clause.
In National
Federation of Independent Business v Sebelius,
the Court held that it was unconstitutional to
threaten states with the withholding of all federal
Medicaid funding, including their existing funding,
for failing to expand coverage in the ways Congress
sought to encourage. Chief Justice Roberts, in
a part of his opinion joined by Justices Breyer and
Kagan, concluded that federal funds withheld,
representing perhaps 10% of a state's entire budget,
was so substantial that states would have no real
choice but to give into Congress's demands. As
a result, seven justices agreed that the Affordable
Care Act's Medicaid expansion provisions violated
the principle that the spending power can not be
used to coerce states into enacting legislation or
participating in a federal program. The Court
distinguished South
Dakota v Dole, noting that the funds
potentially lost by South Dakota in that case
representing only one-half a percent of the state's
budget.
THE PROPERTY CLAUSE POWER
The
Congress shall have Power to dispose of and make
all needful Rules and Regulations
respecting
the Territory or other Property belonging to the
United States....
In 1976, a
dispute over 19 wild burros rounded up on federal
land and sold by New Mexico's Livestock Board
reached the Supreme Court (New Mexico vs Kleppe).
The Department of Interior argued the New Mexico's
action violated the Wild Free-Roaming Horses and
Burros Act, while New Mexico countered that the Act
exceeded the power granted to Congress by the
Property Clause of Article IV, Section 3. New
Mexico contended that Congress could regulate only
those state actions on federal land that threaten to
damage public lands. The Court, however,
rejected this narrow interpretation. Congress
has the power to enact "needful" regulations
"respecting" the public lands and--according to the
Court---what is a "needful" regulation is a decision
"entrusted primarily to the judgment of
Congress." The Court concluded the federal
government "has a power over its own property
analogous to the police power" of the states.
The Court did "not think it appropriate [in Kleppe]...to
determine the extent to which the Property Clause
empowers Congress to protect animals on private
lands."
THE COPYRIGHT &
PATENT POWER
...To promote the
Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive
Right to their respective Writings and
Discoveries...
In 2003,
the Supreme Court decided Eldred v Ashcroft, which
provided the Court its first opportunity to
interpret the power of Congress under Article I to
extend copyright protection to authors "for limited
times." Eldred operated a website that offered
for sale works for which copyright protection had
expired (or "fallen into the public domain").
He challenged the constitutionality of the Copyright
Term Extension Act of 1998--sometimes called the
"Mickey Mouse Protection Act" because Disney had
lobbied hard for extension of its copyright
protection for Mickey Mouse, which was nearing the
end of its 75-year term of protection under existing
copyright law. Simply put, the argument of
Eldred and his many supporters (including librarians
and academics who argue that creativity will benefit
from allowing use of expired works) was that
"limited times" doesn't mean "forever"--and that 75
years of protection is more than enough time to
provide an adequate financial incentive for
authors. Eldred noted that Congress's first
copyright act offered only seventeen years
of protection. By a vote of 7
to 2, the Court ruled in Eldred that
Congress did not exceed its power under the
Copyright Clause.
The
power to protect original works of
authorship:
Eldred vs Ashcroft (2003) and
other legal documents are accessible
from: Harvard's
Open
Law
Eric Eldred, plaintiff in
suit challenging the constitutionality of
the 1998 Sonny Bono Copyright Term
Extension Act
(photo: ABA Journal)
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Key Constitutional
Grants
of Powers to Congress
Article I, Section. 8.
The Congress shall have Power To lay and
collect Taxes, Duties, Imposts and Excises, to
pay the Debts and provide for the common
Defence and general Welfare of the United
States; but all Duties, Imposts and Excises
shall be uniform throughout the United
States;
To borrow Money on the credit of the
United States;
To regulate Commerce with
foreign Nations, and among the several
States, and with the Indian Tribes;
To establish an uniform Rule of
Naturalization, and uniform Laws on the
subject of Bankruptcies throughout the
United States;
To coin Money, regulate the
Value thereof, and of foreign Coin, and fix
the Standard of Weights and Measures;
To provide for the Punishment of
counterfeiting the Securities and current
Coin of the United States;
To establish Post Offices and
post Roads;
To promote the Progress of
Science and useful Arts, by securing for
limited Times to Authors and Inventors the
exclusive Right to their respective Writings
and Discoveries;
To constitute Tribunals inferior
to the supreme Court;
To define and punish Piracies
and Felonies committed on the high Seas, and
Offences against the Law of Nations;
To declare War, grant Letters of
Marque and Reprisal, and make Rules
concerning Captures on Land and Water;
To raise and support Armies, but
no Appropriation of Money to that Use shall
be for a longer Term than two Years;
To provide and maintain a
Navy;
To make Rules for the Government
and Regulation of the land and naval
Forces;
To provide for calling forth the
Militia to execute the Laws of the Union,
suppress Insurrections and repel
Invasions;
To provide for organizing,
arming, and disciplining, the Militia, and
for governing such Part of them as may be
employed in the Service of the United
States, reserving to the States
respectively, the Appointment of the
Officers, and the Authority of training the
Militia according to the discipline
prescribed by Congress;
To exercise exclusive
Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles
square) as may, by Cession of particular
States, and the Acceptance of Congress,
become the Seat of the Government of the
United States, and to exercise like
Authority over all Places purchased by the
Consent of the Legislature of the State in
which the Same shall be, for the
Erection of Forts, Magazines, Arsenals,
dock-Yards, and other needful
Buildings;--And
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, or in
any Department or Officer thereof.
Article IV, Section 3
New States may be admitted by the
Congress into this Union; but no new State
shall be formed or erected within the
Jurisdiction of any other State; nor any State
be formed by the Junction of two or more
States, or Parts of States, without the
Consent of the Legislatures of the States
concerned as well as of the Congress.
The Congress shall have Power to
dispose of and make all needful Rules and
Regulations respecting the Territory or
other Property belonging to the United
States; and nothing in this Constitution
shall be so construed as to Prejudice any
Claims of the United States, or of any
particular State.
Amendment XVI
(Ratified February 3, 1913.)
The Congress shall have power to lay and
collect taxes on incomes, from whatever source
derived, without apportionment among the
several States, and without regard to any
census or enumeration. |
Questions
TAXING & SPENDING POWERS--
QUESTIONS
1. Does Congress have the power to tax for a purely
regulatory, non-revenue raising, goal? Could
Congress require all prostitutes to register and pay a tax
if it could not make prostitution a federal crime
directly?
2. Do the Court's recent Commerce Clause decisions
give reason to think the Court will also tighten up the
Congress's use of its taxing and spending powers?
3. In South Dakota vs Dole, is it clear that
South Dakota's lower drinking age jeopardized federal
interests in the national highway program? If so,
how substantially?
4. Could Congress condition the receiving of federal
dollars to fight crime on a state's having enacted the
death penalty? How--if at all--would such a
condition differ from the condition upheld in South
Dakota vs Dole?
5. What result in South Dakota vs Dole if
South Dakota stood to lose all federal highway
money if it didn't raise its drinking age? What if
it stood to lose 30%?
THE PROPERTY CLAUSE-- QUESTIONS
1. Does the Property Clause give the
Congress the power to protect wildlife on private land
that spends most of its time on federal land (on national
park, national wildlife refuge, national forest, or BLM
land)? Does the Property Clause empower the Congress
to protect a grizzly bear or wolf wanders from federal
land onto the private land of a rancher?--or is the
rancher free to fire away, state law permitting?
2. Does the Property Clause empower Congress to
regulate private activities on private land that adversely
effect public lands, such as air pollution from a nearby
plant, bright lights from neon advertising, or noise from
a racetrack?
3. Does Article IV, Section 3 give Congress the
power to regulate any behavior of residents of U. S.
Territories that it chooses to, provided no other
provision of the Constitution is offended? For
example, could the Violence Against Women Act provision
invalidated in Morrison be enforceable in U.
S. Territories (such as Guam or Puerto Rico), even though
it can't be in the fifty states?
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