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Congressional Power, Lecture 1

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Information about Congressional Power, Lecture 1

Published on April 21, 2008

Author: mblemieux

Source: slideshare.net

Description

Lecture given to German law students as part of the University of Münster's foreign law program.
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U.S. Constitutional Law Legislative Powers: The Commerce Clause

Congress Two Houses Senate – 100 members, two from each state, six-year terms (staggered). Filibuster & Cloture Confirms Executive and Judicial appointments House – 435 members, number per state depends on population, two-year terms. Power of the purse Removal by 2/3 vote Censure (punishment) by majority vote.

Two Houses

Senate – 100 members, two from each state, six-year terms (staggered).

Filibuster & Cloture

Confirms Executive and Judicial appointments

House – 435 members, number per state depends on population, two-year terms.

Power of the purse

Removal by 2/3 vote

Censure (punishment) by majority vote.

House of Representatives

Lawmakers Legislative Branch = lawmakers But they do much more: Administrative powers Taxing & Spending powers Supervisory powers Establishment powers War powers Regulatory powers

Legislative Branch = lawmakers

But they do much more:

Administrative powers

Taxing & Spending powers

Supervisory powers

Establishment powers

War powers

Regulatory powers

Taxing Power Under Articles of Confederation, Congress had no taxing power. Historical difference between direct v. indirect and revenue raising v. regulatory, but not today. Although, it's unlikely that a direct tax on property would be constitutional. As long as there is some connection to revenue raising, tax will be allowed.

Under Articles of Confederation, Congress had no taxing power.

Historical difference between direct v. indirect and revenue raising v. regulatory, but not today.

Although, it's unlikely that a direct tax on property would be constitutional.

As long as there is some connection to revenue raising, tax will be allowed.

Spending Power Congress has broad powers to spend to advance “general welfare.” Congress may spend in any way it believes will serve general welfare so long as it does not violate another constitutional provision. Can use spending power to regulate

Congress has broad powers to spend to advance “general welfare.”

Congress may spend in any way it believes will serve general welfare so long as it does not violate another constitutional provision.

Can use spending power to regulate

Definitions Interstate – crossing state borders Intrastate – activity within state borders Federalism - A system of government in which power is divided between a central authority and constituent political units. Sherman Anti-Trust Act – outlaws monopolies, encourages competition.

Interstate – crossing state borders

Intrastate – activity within state borders

Federalism - A system of government in which power is divided between a central authority and constituent political units.

Sherman Anti-Trust Act – outlaws monopolies, encourages competition.

Commerce Clause Art I, § 8: “The Congress shall have the power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .” What's really at issue here? Federal v. State powers – who has “police power” Government v. private industry – when can government regulate? (we will focus mostly on this) NEW Key questions are: What is “interstate” What is “commerce”

Art I, § 8: “The Congress shall have the power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”

What's really at issue here?

Federal v. State powers – who has “police power”

Government v. private industry – when can government regulate? (we will focus mostly on this) NEW

Key questions are:

What is “interstate”

What is “commerce”

State v. Federal Government NEW Four possible interpretations: Commerce Clause gives only Congress power to regulate commerce. States and Feds have concurrent power to regulate commerce. States and Feds have their own mutually exclusive zones of regulation. States cannot regulate commerce in certain ways , but otherwise they have concurrent power with Feds. This is basically the route modern courts have taken . . . when they apply Commerce Clause.

Four possible interpretations:

Commerce Clause gives only Congress power to regulate commerce.

States and Feds have concurrent power to regulate commerce.

States and Feds have their own mutually exclusive zones of regulation.

States cannot regulate commerce in certain ways , but otherwise they have concurrent power with Feds.

This is basically the route modern courts have taken . . . when they apply Commerce Clause.

What is Interstate “among the several states” = Interstate concerning more than one state Generally, Congress may regulate when commerce has interstate effects, even if the commerce occurs within a single state. NOTE – this was generally accepted even in the era when the Court limited Commerce Clause power.

“among the several states” = Interstate

concerning more than one state

Generally, Congress may regulate when commerce has interstate effects, even if the commerce occurs within a single state.

NOTE – this was generally accepted even in the era when the Court limited Commerce Clause power.

What is Commerce Definition has changed over the years: Original definition – commerce includes all phases of business, including navigation (Gibbons v. Ogden) 1887-1937 – only the end phase of business (the actual exchange of goods). Does not include production, manufacturing, mining, etc. 1937-1995 – Congress could regulate any activity that taken cumulatively had an effect on interstate commerce. NEW expressly rejecting exclusion of production process

Definition has changed over the years:

Original definition – commerce includes all phases of business, including navigation (Gibbons v. Ogden)

1887-1937 – only the end phase of business (the actual exchange of goods).

Does not include production, manufacturing, mining, etc.

1937-1995 – Congress could regulate any activity that taken cumulatively had an effect on interstate commerce. NEW

expressly rejecting exclusion of production process

Heart of Atlanta Motel v. U.S.

Questions What are some of the key characteristics of the Heart of Atlanta Motel? Why did the motel get sued? What arguments does the motel raise as a defense? What does public accommodations mean? The Court struck down civil rights laws in the late 1800s. Why is this earlier case deemed not to be precedent by the Court? Why does the court reject defendant's claim that is only involved in local commerce?

What are some of the key characteristics of the Heart of Atlanta Motel?

Why did the motel get sued?

What arguments does the motel raise as a defense?

What does public accommodations mean?

The Court struck down civil rights laws in the late 1800s. Why is this earlier case deemed not to be precedent by the Court?

Why does the court reject defendant's claim that is only involved in local commerce?

Other Examples National Labor Relations Act fair employment practices, collective bargaining, create board to enforce labor laws. Fair Labor Standards Act Agricultural Quotas, even for self use! Regulation of surface mining Application of civil rights laws to local restaurant

National Labor Relations Act

fair employment practices, collective bargaining, create board to enforce labor laws.

Fair Labor Standards Act

Agricultural Quotas, even for self use!

Regulation of surface mining

Application of civil rights laws to local restaurant

United States v. Lopez

Questions What federal law is being challenged in this case? What does Chief Justice Rehnquist say are the three areas that modern Commerce Clause cases have allowed Congress to regulate? Which one of these three areas of regulation are at issue in Lopez? Why does Rehnquist say that Lopez is different than the far reaching case of Wickard? How does the Government claim that the federal law does substantially affect interstate commerce?

What federal law is being challenged in this case?

What does Chief Justice Rehnquist say are the three areas that modern Commerce Clause cases have allowed Congress to regulate?

Which one of these three areas of regulation are at issue in Lopez?

Why does Rehnquist say that Lopez is different than the far reaching case of Wickard?

How does the Government claim that the federal law does substantially affect interstate commerce?

Questions Continued Why does Rehnquist reject the Government's position? Why does Justice Kennedy think the law falls outside of the Commerce Clause power?

Why does Rehnquist reject the Government's position?

Why does Justice Kennedy think the law falls outside of the Commerce Clause power?

Post-Lopez Congress has the power to regulate only the channels of commerce, the instrumentalities of commerce, and action that substantially affects interstate commerce Violence Against Women Act (U.S. v. Morrison)

Congress has the power to regulate only

the channels of commerce,

the instrumentalities of commerce, and

action that substantially affects interstate commerce

Violence Against Women Act (U.S. v. Morrison)

Gonzalez v. Raich (2005)

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