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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.
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.
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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