VOLUME I: SOURCES OF POWER AND RESTRAINT
CHAPTER 2:
CONGRESS AND THE DEVELOPMENT OF NATIONAL POWER
Chapter Outline
Notes on Excerpted Cases
Questions for Thought and Discussion
Multiple Choice Questions
Essay Questions
Hypothetical Problem for Classroom Discussion or Essay Examination
Introduction of Topic in Lecture
Questions for Website
CHAPTER OUTLINE:
Structural Aspects of Congress
Constitutional Sources of Congressional Power
The Power to Investigate
Regulation of Interstate Commerce
Taxing and Spending Powers
Congressional Enforcement of Civil Rights and Liberties
McCulloch v. Maryland (1819)
Watkins v. United States (1957)
NOTES ON EXCERPTED CASES:
McCulloch v. Maryland (1819). In 1791 Congress had granted a twenty-year charter to
the Bank of the United States. In 1816, five years after the charter expired, Congress
established a second Bank of the United States, once again on the basis of the twenty-
year charter. For a variety of reasons, including its heavy speculation and alleged
fraudulent practices, the Bank soon became the center of political controversy. Eight
states passed legislation designed to prevent or discourage the Bank from doing business
within their jurisdictions. Maryland chose the latter course by levying a tax on the Bank’s
Baltimore branch. A penalty of $500 was imposed for each violation of the tax measure.
James W. McCulloch, cashier of the Baltimore branch, violated the Maryland statute by
refusing the pay the tax, and a judgment was rendered against him by the Baltimore
County Court. Agreeing on a statement of facts, the Maryland attorney general and
federal officials converted this legal action into a test case on the constitutionality of the
state law and, ultimately, of the Bank itself. Critics of the Bank argued that Congress had
no constitutional warrant to charter a national bank and that, in any event, the states were
Watkins v. United States (1957). The Supreme Court reversed a conviction for contempt
of Congress in a case where a witness had refused to answer questions put to him by a
subcommittee of the House Un-American Activities Committee. The witness, John
Watkins, answered questions about his own beliefs and activities, but refused to discuss
the activities of other individuals, saying: “I am not going to plead the Fifth Amendment,
Barenblatt v. United States (1959). Lloyd Barenblatt, a former college professor, was
subpoenaed by a HUAC subcommittee looking into “communist infiltration” of higher
education. Eschewing the 5th Amendment, Barenblatt refused to answer questions on the
ground that Congress did not have the authority to inquire into the political beliefs and
Gibbons v. Ogden (1824). In this case the Supreme Court struck down a steamboat
monopoly granted by the state of New York to Robert Fulton and Robert Livingston.
Aaron Ogden succeeded to the ownership of the Fulton-Livingston interest, which
extended to commercial steamboat traffic between New York and New Jersey. Thomas
Gibbons challenged this exclusive grant on the ground that it interfered with the power of
Congress to regulate commerce among the states. Gibbons was licensed under federal
law to engage in the “coasting” trade—commerce and navigation in coastal waters—and he
contended that this authorization gave him the right to transact business of an interstate
nature within the boundaries of New York, irrespective of that state’s monopoly grant to
others. In the course of declaring the New York steamboat monopoly unconstitutional,
Chief Justice Marshall wrote expansively about the scope of congressional power
embodied in the Commerce Clause. In this instance an obvious conflict existed between
regulate commerce among the states. But the Court stopped short of holding that states
had no power whatsoever to regulate interstate commerce.
Hammer v. Dagenhart (1918). A 1916 federal statute prohibited the interstate shipment
of goods manufactured in violation of certain standards governing the employment of
child labor. Dagenhart, whose two minor children were notified that they were being
discharged from the North Carolina cotton mill where they worked, brought suit to
challenge the constitutionality of the Act. Hammer, the U.S. Attorney General, appealed
from a decree enjoining enforcement of the Act. Relying on the Tenth Amendment, the
Carter v. Carter Coal Company (1936). The Bituminous Coal Act of 1935 created a
national commission with authority to regulate wages and prices for the soft coal
industry. A 15% tax was levied on all coal sold at the mine and producers who accepted
the federal regulations were entitled to a 90% rebate of assessed taxes. Carter, a
N.L.R.B. v. Jones-Laughlin Steel Corp. (1937). In a proceeding conducted under the
authority of the National Labor Relations Act of 1935, the National Labor Relations
Board found that the Jones-Laughlin Steel Corporation had engaged in unfair labor
practices. The NLRB ordered the company to cease and desist. Jones-Laughlin refused to
Wickard v. Filburn (1942). This decision nicely illustrates the post-New Deal Supreme
Court’s perspective on the Commerce Clause. At issue was the constitutionality of a
federal acreage allotment for wheat. The specific issue consisted of a farmer’s raising a
Heart of Atlanta Motel v. United States (1964). Here the Supreme Court unanimously
upheld the public accommodations section of the 1964 Civil Rights Act as a proper
exercise of the commerce power. The motel in question did a substantial volume of
Katzenbach v. McClung (1964). In a companion case to Heart of Atlanta Motel v. U.S.,
the Supreme Court went even further by recognizing the power of Congress under the
Commerce Clause to bar racial discrimination in a restaurant (Ollie’s Barbecue in
Birmingham, Alabama) patronized almost entirely by local customers. The Court found a
connection with interstate commerce in the purchase of food and equipment from sources
outside Alabama. Justice Tom Clark’s opinion for the Court asserted that “[t]he absence
of direct evidence connecting discriminatory restaurant service with the flow of interstate
food, a factor on which the appellees place much reliance, is not, given the evidence as to
United States v. Lopez (1995). Here a closely divided Supreme Court invalidated the Gun–
Free School Zones Act of 1990, a federal statute criminalizing the possession of a firearm in
or within 1,000 feet of a school. As constitutional authority for this statute, Congress had
relied on its power to regulate interstate commerce. Five members of the Court rejected this
justification. Writing for the majority, Chief Justice Rehnquist, joined by Justices O’Connor,
Scalia, Kennedy, and Thomas, asserted that the Gun-Free School Zones Act was “a criminal
statute that by its terms [had] nothing to do with ‘commerce’ or any sort of enterprise,
however broadly one might define those terms.” Rehnquist observed that “if we were to
Gonzales v. Raich (2004). The case involved two women who used marijuana for
medical reasons based on the recommendation of their doctor as authorized by
California’s Compassionate Use Act of 1996. Under the federal Controlled Substances
Act (CSA), the possession or use of marijuana is a crime and there is no exception for
medicinal use. When agents of the federal Drug Enforcement Administration learned that
one of the women was cultivating marijuana in her home, they obtained a search warrant
and seized and destroyed the plants. Subsequently, the women brought suit in federal
court, claiming that Congress had no authority under the Commerce Clause to prohibit
United States v. Butler (1936). Under the Agricultural Adjustment Act of 1933, proceeds
from the processing tax were used to pay farmers in exchange for their promises to
reduce crop acreage. Thus, the scheme of regulation at issue embodied both taxing and
spending features and rested squarely on Article I, Section 8, Clause I as its constitutional
Steward Machine Company v. Davis (1937). In this case, the Supreme Court upheld the
unemployment compensation features of the Social Security Act of 1935. Justice
Cardozo’s majority opinion recognized extensive congressional power to tax and spend,
based on an interpretation of the General Welfare Clause as a source of plenary power.
South Dakota v. Dole (1987). In 1984 Congress adopted an act directing the Secretary of
Transportation to withhold federal highway funds from states whose drinking age was
lower than twenty-one years. South Dakota brought suit, attacking the right of the federal
government to impose this condition on the receipt of federal funds. The Supreme Court
rejected the state’s challenge, saying that “the condition imposed by Congress is directly
related to one of the main purposes for which highway funds are expended-safe interstate
South Carolina v. Katzenbach (1966). In a civil action originating in the U.S. Supreme
Court, the state of South Carolina challenged the constitutionality of the Voting Rights
Act of 1965. The Court, in an opinion by Chief Justice Warren, rejected this challenge,
concluding that Congress had established an ample factual basis for the legislation and
that the provisions in question “are a valid means for carrying out the commands of the
Fifteenth Amendment.” Warren stated that “the basic test to be applied in a case
involving Section 2 of the Fifteenth Amendment [the enforcement section] is the same as
City of Boerne v. Flores (1997). Here the court declared unconstitutional the Religious
Freedom Restoration Act of 1993. In effect, the Act required courts to interpret the Free
Exercise Clause of the First Amendment to provide more protection to religious liberty
than the Supreme Court has recognized in recent decisions. Writing for the Court, Justice
Kennedy observed that Congress lacks authority to enact its own interpretations of the
Constitution that run counter to those of the Court.
QUESTIONS FOR THOUGHT AND DISCUSSION:
1. Since adoption of the Seventeenth Amendment in 1913, members of both houses of
Congress have been elected directly by the people. In view of this change from the
original design of the Framers, does it still make sense to maintain a bicameral
Congress?
2. Given the continuing concern over divided party government and the resulting
“gridlock” in Washington, does the Madisonian system of separation of powers still
make sense, or would a parliamentary model be more successful in the United States?
3. Under the doctrine of implied powers, is there any field in which Congress may not
legislate?
4. Was Woodrow Wilson correct a century ago in observing that the “informing
function” of Congress is more important than its lawmaking function? If so, would
this observation be accurate today?
5. Has the Supreme Court imposed adequate constitutional safeguards against
congressional abuse of the power to investigate?
6. Is there any form of economic activity that does not have a bearing on interstate
commerce and is therefore beyond the reach of congressional legislation under the
Commerce Clause?
7. Did the much publicized Lopez decision of 1995 represent a radical rethinking of the
Supreme Court’s Commerce Clause jurisprudence or was the decision merely an
aberration largely confined to its facts?
8. Should Congress be permitted to use its taxing and spending power to coerce the
states to make policy decisions that are traditionally matters of exclusive state
control?
9. To what extent, if at all, does the Supreme Court’s decision in City of Boerne v.
Flores (1997) contradict its earlier decision in Katzenbach v. Morgan (1966)
regarding the enforcement power of Congress under Section 5 of the 14th
Amendment?
10. Why did Congress rely principally on the Commerce Clause rather than the 14th
Amendment for its authority to enact Title II of the Civil Rights Act of 1964 banning
racial discrimination by places of public accommodation?
11. Consider the Supreme Court’s decision in U.S. Term Limits, Inc. v. Thornton (1995).
Which opinion do you believe is correct, Justice Stevens’ majority opinion or Justice
12. Consider the Patient Protection and Affordable Care Act of 2010, which brought the
federal government into the regulation of the health care industry. The controversial
legislation included a provision mandating that uninsured individuals obtain coverage
and imposing fines on those who failed to do so. This legislation has been challenged
on various constitutional grounds, including commerce, in Florida et al. v. Sebelius.
Does Congress have the constitutional authority to require citizens to obtain
healthcare coverage and impose fines for failure to do so under the enumerated power
MULTIPLE CHOICE QUESTIONS:
a. regulatory
b. distributive
c. federalist
d. legislative
a. direct popular election of U.S. Senators
b. the prohibition of alcoholic beverages
c. the federal income tax
d. none of the above
must be at least ____ years of age; members of the Senate must be at least ____
years old.
a. 25; 30
b. 30; 35
c. 35; 40
d. 40; 45
a. lay and collect taxes
b. fix standards of weights and measures
c. regulate commerce among the states
d. all of the above
advocate of strong centralized government.
a. enumerated
b. reserved
c. implied
d. concurrent
landmark case of ________________.
a. Marbury v. Madison (1803)
b. McCulloch v. Maryland (1819)
c. Gibbons v. Ogden (1824)
d. Kilbourn v. Thompson (1881)
statute imposing restrictions on the use of ___________.
a. marijuana
b. oleomargarine
c. child labor
d. railroad tracks
Congressional action under the _________________ and, at the same time, placed
restrictions on state grants of commercial monopoly.
a. Commerce Clause
b. Necessary and Proper Clause
c. Full Faith and Credit Clause
d. General Welfare Clause
investigations in ___________________.
a. McCulloch v. Maryland (1819)
b. Gibbons v. Ogden (1924)
c. Fletcher v. Peck (1810)
d. Kilbourn v. Thompson (1881)
but leaves those vague categories largely undefined.
a. democracy
b. representation
c. commerce
d. taxes
a. Fair Labor Standards Act of 1938
b. Full Faith and Credit Act of 1940
c. the Internal Security Act of 1940
d. the Social Security Act of 1935
resurrect the Tenth Amendment as it struck down provisions of the 1974
amendments to the Fair Labor Standards Act extending the minimum-wage to
state and local government employees.
a. Gregg v. Georgia
b. Buckley v. Valeo
c. National League of Cities v. Usery
d. U.S. v. E.C. Knight Co.
a. “reasonable, fair and just”
b. “uniform throughout the United States”
c. “based solely on rents and royalties”
d. “subject to judicial review”
intergovernmental taxation.
a. implied consent
b. dual sovereignty
c. indirect recovery
d. reciprocal immunity
legislate in the field of _________________.
a. eminent domain
b. criminal law
c. civil rights
d. international relations
by the Supreme Court?
a. Wickard v. Filburn
b. Hammer v. Dagenhart
c. NLRB v. Jones and Laughlin Steel Corp.
d. United States v. Darby Lumber Company
a. an exclusive grant of power to the national government
b. an open-ended grant of authority to the states
c. currently interpreted as a major limitation on the power of Congress to regulate
the economy
d. none of the above
a. expansion of constitutional power at the national level
b. narrowing of constitutional power at the national level
c. expansion of constitutional power exercised by the states
d. application of the Bill of Rights to the states
a. the regulation of interstate commerce
b. the appropriation of funds
c. the conducting of investigations
d. declaring war
minimum wage requirements _______________________________________.
a. do not apply to most state employees
b. apply to most state employees
c. apply to women only
d. do not apply to persons above the age of twenty-one
commerce and manufacturing:
a. remains in effect today
b. was previously endorsed by Chief Justice Marshall
c. was rejected in the Darby case
d. was repudiated by a five-four majority in the Dagenhart case
broad scope to Congress’ _______________.
a. power to declare war
b. power to investigate
c. borrowing power
d. taxing and spending power
is __________________________________.
a. less likely to invalidate a federal tax designed chiefly as a regulatory measure
b. more likely to invalidate a federal tax designed chiefly as a regulatory measure
c. less likely to recognize broad national legislative power
d. more likely to strike down state economic regulations
exercise police powers. The Court achieved this result by _______________.
a. narrowly interpreting the Commerce Clause
b. following the doctrine of dual federalism
c. distinguishing between manufacturing and distribution of products
d. all of the above
a. the Commerce Clause
b. the Supremacy Clause
c. the General Welfare Clause
d. the Necessary and Proper Clause
the House of Representatives and the Senate.
a. I
b. II
c. III
d. IV