U.C. HASTINGS COLLEGE OF THE LAW
CONSTITUTIONAL LAW
PROFESSOR LESHY
SPRING SEMESTER 2013
HANDOUT # 2
TOPIC TWO – NATIONAL LEGISLATIVE POWER - CONTINUED
Gibbons v. Ogden, p. 37.
1. The federal statute under which Gibbons was licensed provided that vessels holding federal
licenses “and no others, shall be deemed ships or vessels of the United States, entitled to the
privileges of ships and vessels employed in the coasting trade.” Where did Congress get the
power to enact this statute?
2. Consider how Marshall interprets the word “commerce.”
Does he read it in a formalistic, mechanical way, or rather in a functional, flexible way?
Does it mean Congress can regulate things as they are crossing state lines, but not
regulate things in the interior of a state?
For example, what result if Gibbons’ federal license also authorized him to operate
between two towns along the Hudson River within the State of New York, as well as to
cross the Hudson to New Jersey? Would that federal statute trump or override New York
state law that (assume) governs that trip between the two towns wholly within the state of
New York?
3. What is the Court’s “scope” or “standard” of review in looking at what Congress has done
here?
Is it searching or deferential? A hard look, or a soft glance?
Is it the same approach that Marshall applied in McCulloch? Is it judicial self-restraint?
Does it suggest that the primary limits on the Commerce Clause are political, and not
judicial?
4. The Court interprets the Commerce Clause as both
(a) a source of congressional power (which is addressed in this chapter), and
(b) a limit on state power (which is addressed in chapter 4). That is, the Clause has been
used by the Supreme Court to strike down state laws for unduly interfering with interstate
commerce even when Congress has not acted. This second aspect is the so-called
“negative” or “dormant” Commerce Clause.
1
5. Note that most of the Supreme Court decisions (the vast bulk, actually) which dealt with the
Commerce Clause before the early 20th century involved reviewing actions by states rather than
actions by Congress (e.g., Paul and Kidd, briefly noted on p. 38, bottom). Why do you suppose
this is so?
----------------
Champion v. Ames, p. 39.
1. Is traffic in lottery tickets “commercial” or “business” activity? Must it be in order for
Congress to regulate it? Does “commerce” as used in the Constitution, in other words, mean
economic activity? Put another way, what was the purpose of the Federal Lottery Act? Does
the evil it sought to combat take place in the act of crossing state lines, or is it found within a
state’s borders?
2. There were a number of cases during this era where the Court rejected the idea that a business
or “commercial” purpose was required before Congress could exercise its commerce power over
interstate movement or transportation. E.g., Caminetti v. United States, 242 U.S. 470 (1917)
(upholding federal statute forbidding transportation of women across state lines for immoral
purposes as applied to a person taking his mistress, not a prostitute, across state lines, for noncommercial purposes). In other words, Congress, the Court said, could use its commerce power
to criminalize non-pecuniary interstate fornication. See also United States v. Hill, 248 U.S. 420
(1919) (carrying alcohol across state lines for one’s own consumption, not for sale).
3. Does the power to “regulate” commerce among the several states include the power to
“prohibit” it? If so, does this mean the right to send or take something across state lines is
actually a privilege subject to being repealed by Congress, instead of a right? Does it mean the
Commerce Clause does not by its own terms protect a “free market” interstate?
4. Is Champion consistent with the original intent of the framers? Do you think the framers
intended the commerce clause to empower Congress to enforce moral standards on the entire
nation?
5. What are the dissenters in Champion really worried about? Are they civil libertarians who
think the government should leave people free to gamble if they choose to do so? Or do they
have another objective?
The Shreveport Case, p. 40.
1. Who was actually regulating here at the federal level? Where did it obtain its power? What
was being regulated, only rates between two places in different states, or something else? Is this
a harder or easier case than The Daniel Ball, p. 39, or the two 1911 railroad cases cited in
Shreveport?
2. Sometimes during this era the Court upheld federal legislation on facts somewhat similar to
2
Shreveport by applying a “stream” or “current” of commerce approach. E.g., Swift v. United
States, 196 U.S. 375 (1905) (upholding federal economic regulation of local sales in stockyards
by considering the sales as part of a “current” of commerce that crossed state lines). Could the
Court have used that rationale here? If so, why didn’t it?
3. Is the Court’s approach in this case more consistent with the approach in Gibbons, or in
Champion? Is it formalist or functional? Would it allow Congress to regulate intrastate rates of
railroads that operated entirely within one state? Regulate the wages and hours of workers who
made goods which pass into interstate commerce?
Hammer v. Dagenhart, p. 88.
1. Remember that the Congress that enacted this legislation, and the President that signed it into
law, were elected officials, and presumably the legislation reflected predominant national
opinion to reduce child labor. What motivated five Justices to strike it down?
Were they taking the libertarian approach that parents and not Congress should decide
whether their children work or go to school? (The plaintiff was a parent who wanted his
thirteen year old boy to work in a cotton mill.)
Or were they seeking to protect something else?
Following this decision, Congress sought to use its taxing power to achieve the same result. The
Court struck this down; see footnote a, p. 71. A determined effort was then made to amend the
Constitution to overturn it. Congress sent an amendment to the states for ratification soon after,
but not enough states ratified it and then, in 1941, the Court overruled Dagenhart in Darby; see p.
46.
2. Is the Court’s approach formalist or functional? Were precedents available to the Court to
reach the opposite result?
Would the Court have had to extend the reasoning of Champion v.Ames to reach the
opposite result?
Is the movement across state lines of goods made with child labor any less interstate
commerce than lottery tickets?
Is child labor any less of an evil than lotteries? Are lottery tickets any more harmful than
the products of child labor? Is the Court saying that Congress can use the Commerce
Clause to regulate the morality of individuals (Champion) but not the morals of the
workplace or marketplace? (In a portion of his dissent not included in the casebook
excerpt, Holmes said: “It is not for this Court to pronounce when prohibition is necessary
to regulation . . . -- to say that it is permissible as against strong drink but not as against
the product of ruined lives.”)(emphasis added)
Which institution of government has primary responsibility for determining these things,
3
under the Constitution?
3. What do you suppose motivated Congress to enact this legislation in the first place? Was
federal regulation necessary to have effective control of child labor?
Suppose, for example, there was strong sentiment in California to stop child labor at local
textile mills. Why might the California state legislature have been unable to stop it?
There might have been at least two reasons.
First, textiles were also made in other states with cheap child labor. Given that
fact, what were the politics of legislating on child labor in California? Who
would have opposed state legislative action to prohibit child labor in California?
What arguments would they have made?
Second, as we’ll see in Chapter 4, it was unlikely that California could have
enforced a state statute prohibiting the importation into California of goods made
with child labor in other states, because of the how the Court interpreted and
applied the so-called “dormant commerce clause.” See, e.g., Baldwin v. Seelig,
which we will read at p. 142, in the casebook, and where the Court held that a
state cannot forbid the sale within the state of milk bought outside the state at a
price lower than the minimum price established by that state for milk produced
within the state.
Considering the first of these, if Congress has no ability to set national policy on the subject,
might that actually threaten, rather than preserve, state freedom of choice? How does the Court
deal with this “race-to-the-bottom” argument, that Congress has the power under the Commerce
Clause to adopt uniform national rules to prevent the states from engaging in competition that is
destructive to some popular social policy end?
The Great Depression and the New Deal
1. The Great Depression persuaded most Americans that the economy was truly a national one a seamless web of interdependent relationships. One result was a strong tide of popular support
favoring sweeping new national economic and regulatory legislation. It is today widely
considered that the Court make a mistake in applying the Constitution to throw out key parts of
this legislation. Was it a legal mistake, or a political mistake, or both?
Was its mistake that it was too aggressive about promoting an economic theory
(celebrating free markets and being hostile to regulation) that most people had lost faith
in?
Or was its mistake that it was inconsistent and somewhat arbitrary, in failing to hew a
consistent approach, in drawing fine distinctions that made no practical sense, and in
tolerating seemingly irreconcilable lines of precedent, and thus losing the people’s
confidence? In other words, was its mistake that it didn’t, in the end, stick by its guns
and limit national congressional power? What might have happened if it did?
4
Or was it a mistake at all? If the Court had stuck by its guns, what might have happened?
Could it have rolled back the New Deal?
2. With regard to Carter Coal, the coal industry was one of the nation’s dominant industries
during this period, employing several hundred thousand workers and having a history of strikes
and other labor disputes, the effects of which rippled throughout the economy. (“When it
sneezed, the Nation caught a cold,” someone said, borrowing from Kremens von Metternich, an
Austrian statesman in the first half of the nineteenth century, who said “when France sneezes, the
world catches a cold.”) Was there precedent that could have allowed the Court to uphold the
Act?
For more background on the court-packing plan briefly discussed at the bottom of p. 44, read
the following excerpts from David M. Kennedy's Pulitzer Prize-winning book, Freedom From
Fear: The American People in Depression and War, 1929-45 (2001), pp. 325-37:
As his second term began, Roosevelt was therefore determined to strike boldly. In the waning moment
before prosperity had fully returned, he must protect the New Deal and prepare the way for further
reform. He struck on three fronts: at the judiciary, at Congress, and, eventually, at elements within his
own party, particularly its entrenched southern wing.
Fatefully, he began with the judiciary. In a singular and eventually disastrous political miscalculation,
Roosevelt opened his new term by launching a surprise attack on one of the most sacred American
institutions, the Supreme Court.
On February 5, 1937, Roosevelt startled Congress with a special message. He asked for a statute that
would allow the president to appoint one additional justice to the Supreme Court, up to a total of six
new appointments, for every sitting justice who declined to retire at age seventy. Additionally, he
requested authority on a like basis to name up to forty-four new judges to the lower federal courts. These
changes were necessary, Roosevelt explained, to promote judicial efficiency by clearing crowded dockets.
There was nothing sacrosanct about the nine-justice Court that Roosevelt sought to enlarge. At various
times in the Court's history Congress had specified five, six, seven, and ten justices as the high bench's
statutory complement. But Roosevelt awkwardly tried to justify his proposed changes with unsupportable
charges of inefficiency and with gratuitous, unpersuasive innuendoes about the senility of the current
justices. "[A]ged or infirm judges—a subject of delicacy," Roosevelt conceded — were inclined "to avoid
an examination of complicated and changed conditions. Little by little, new facts become blurred through
old glasses fitted, as it were, for the needs of another generation; older men, assuming that the scene is
the same as it was in the past, cease to explore or inquire into the present or the future."
There was a wisp of truth in what Roosevelt said. The average age of the current justices was seventyone. Louis Brandeis was the oldest at eighty. Ironically, the elderly Brandeis, along with Benjamin
Cardozo (sixty-six) and Harlan Fiske Stone (sixty-four), made up the Court's most consistently liberal bloc.
The notoriously conservative “Four Horsemen" were all septuagenarians: James C. McReynolds (seventyfive), George Sutherland (seventy-four), Willis Van Devanter (seventy-seven), and Pierce Butler
(seventy). Chief Justice Charles Evans Hughes was seventy-five; he and Owen J. Roberts, the Court's
youngster at sixty-one, made up the swing votes that held the balance of power.
5
But neither efficiency nor age was the real issue, and Roosevelt knew it. So did the country. The
normally pro—New Deal New York World- Telegram condemned Roosevelt's scheme as "too clever, too
damned clever." * * * Roosevelt was proposing to fiddle with one of the most respected and immutable
American institutions, one designed by the Founders and enshrined in national mythology as the ballast
whose unshifting weight could be counted upon to steady the ship of state. It did the president's cause
incalculable harm that he opened the national discussion about this explosive issue on a transparently
disingenuous note.
Yet the causes of Roosevelt's exasperation with the Court were genuine enough. He had appointed not
one of the nine sitting justices; he was at that moment the first president since Andrew Johnson not to
have made a Supreme Court nomination. His Democratic predecessor *** Woodrow Wilson, had
appointed the liberal Brandeis and the conservative McReynolds. Republican presidents had named all
the others, just as they had named a heavy majority (nearly 8o percent) of judges then sitting at all levels
of the federal judiciary.9 Though its members were not monolithic in their thinking, the "Court of
Methuselahs" regularly produced majorities, with the Four Horsemen as their nucleus, for decisions that
threatened everything the New Deal was trying to accomplish.
In the broadest sense, the Court's power derived from the doctrine of judicial review, a concept not
defined in the Constitution but first asserted by John Marshall in Marbury v. Madison in 1803,
when he claimed for the Supreme Court the ultimate authority to define the meaning of the
Constitution and set limits to legislative action. The doctrine lay dormant for half a century thereafter,
not revived again until the Dred Scott case in 1857. But in the decades following the Civil War, as
both state legislatures and the federal Congress tried to assert some control over the rapidly
industrializing economy, the Court was increasingly inclined to stay the legislators' hands. The specific
restraint it invoked most often was one fashioned from the elusive concept of substantive due process.
[NOTE: We will take up “substantive due process” in Chapter 5.]
Substantive due process amounted in practice to the proposition that some "substantive" rights were so
inviolable —especially property and contract rights—that they lay beyond the reach of any imaginable
"process," or law. Though in explaining its decisions the Court cited various specific points of the law,
such as restrictions on the commerce power or freedom of contract, the …idea that since the 189os
had shaped the Court's basic attitude toward economic legislation was the principle of laissez-faire, or
noninterference in the market economy. Applying that principle made the judiciary the most powerful
arm of government, though its power was wholly the power to veto. Reformers from Theodore Roosevelt
onward, including on occasion jurists like Brandeis and Stone, had decried this meddlesome judicial
activism, beseeching the black-robed, unelected justices to defer to the will of democratically elected
legislatures. But they pleaded in vain. In the 1920s alone, no fewer than nineteen socioeconomic
statutes had fallen to the judicial ax, including laws that prohibited child labor and defined minimum wages
for women workers. In the 1930s the flood of New Deal legislation made a titanic duel with the
judiciary all but inevitable.
_____________
9. Hughes and Van Devanter had been appointed by President Taft, Sutherland and Butler by Harding, Stone by Coolidge,
and Cardozo and Roberts by Hoover, who had also elevated Hughes to the position of chief justice. In 1933 approximately
191 of the 266 federal judges were Republican appointees. William E. Leuchtenburg, The Supreme Court Reborn: The
Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 79, n. 5.
6
The Court had already thrown down the gauntlet to the New Deal. On "Black Monday," May 27, 1935, in
Schechter Poultry Corporation v. United States,1 known ever after as the "sick chicken" case, the
justices had unanimously declared the National Industrial Recovery Act to be unconstitutional. Congress,
said the Court, had impermissibly delegated its inalienable lawmaking authority to the National Recovery
Administration—"delegation run riot," said Justice. Cardozo. The opinion not only voided the NRA but
jeopardized the very concept of rulemaking independent regulatory agencies like the Securities and
Exchange Commission or the National Labor Relations Board. For good measure, the Court also went out
of its way to define the Schechter brothers' Brooklyn kosher-poultry business as exclusively intrastate in
character. The decision thus put the Schechters' violation of NRA wage and hour codes, not to mention
their sale of diseased poultry, beyond the reach of federal power, which was constitutionally confined to the
regulation of interstate commerce.°
The Schecter decision stunned Roosevelt. What was at stake, he instantly recognized, was nothing less
than what the New Republic called "the very foundation of national power in a modern industrial
society." Could the government act in the face of the greatest economic calamity in American history, or
was it to be forever hog-tied by the strictures of the Constitution? "We have been relegated to the horseand-buggy definition of interstate commerce," Roosevelt complained. "I tell you, Mr. President," Attorney
General Homer Cummings fulminated, "they mean to destroy us.. .. We will have to find a way to
get rid of the present membership of the Supreme Court.""
Worse soon followed. In the first week of 1936 the Court took up residence in its new classic-revival
temple on Capitol Hill. "It is a magnificent structure," said a New Yorker writer, "with fine big windows
to throw the New Deal out of." On January 6, in the case of United States v. Butler, the Court by a
six-to-three vote tossed out the Agricultural Adjustment Act. The tax on processors that went to pay
farmers who limited crop production, the Court declared, unconstitutionally encroached on regulatory
powers reserved to the states by the Tenth Amendment. Justice Stone in dissent said that the majority's
decision in the AAA case proceeded from "a tortured construction of the Constitution.... Courts are not
the only agency of government that must be assumed to have capacity to govern," he admonished, in
what was by then a familiar criticism. In March 1936, again citing the Tenth Amendment as well
as limitations on the commerce power, the Court struck down the Guffey Bituminous Coal
Conservation Act, a "little NRA" law enacted after Schechter to shore up the chronically ailing coal
industry.
Then came the crowning blow. Just weeks later, in Morehead v. New York ex rel. Tipaldo, Owen
Roberts joined the Four Horsemen to form a scant five-to-four majority that invalidated a New York
minimum wage law as an unconstitutional infringement on freedom of contract. The Court's other
decisions in the 1936 term had circumscribed federal power, largely in the name of states' rights. Now
the Tipaldo decision sharply curtailed the regulatory powers of the states themselves.
For the critics of substantive due process, Tipaldo was the final insult. Justice Stone dissented with
unusual vigor. "There is grim irony," he wrote, "in speaking of the freedom of contract of those who,
because of their economic necessities, give their services for less than is needful to keep body and soul
together." Privately, Stone wrote to his sister that the Tipaldo decision climaxed "one of the most
disastrous" terms in the Court's history. "[Tipaldo] was a holding by a divided vote that there was no
1
Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935). On the same day as the Schechter decision, the Court
also handed down two other decisions harmful to the New Deal. In Louisville Bank v. Radford (295 U.S. 555), the Court
invalidated the Frazier-Lemke mortgage moratorium act. In Humphrey's Executor v. United States (291 U.S. 602), it sharply
circumscribed the president's power to remove members of regulatory commissions.
7
power in a state to regulate minimum wages for women. Since the Court last week said that this could
not be done by the national government, as the matter was local, and now it is said that it cannot be
done by local governments even though it is local, we seem to have tied Uncle Sam up in a hard knot."
For his part, Roosevelt trenchantly remarked that with the Tipaldo decision the Court had for all
practical purposes marked off a "no man's land where no Government— State or Federal—can function.”
The amendment process was in any case designedly difficult, requiring two-thirds approval in each
house of Congress and ratification by three-fourths of the states. It was also time-consuming. The
example -of the amendment prohibiting child labor, first approved by Congress in 1924 but still
unpassed by the requisite number of states thirteen years- later, weighed heavily in the president's
thinking. Time, Roosevelt knew, was of the essence. Cases testing the validity of the National Labor
Relations Act, the Social Security Act, and a bundle of state minimum wage and unemployment
compensation laws were already on the Court's docket by the end of 1936. Unless something were
done, the new year might bring a constitutional Armageddon. The distinct possibility loomed that when
the Court reconvened in January the entire New Deal might be summarily repealed by wholesale judicial
annihilation—a bitterly ironic sequel to Roosevelt's smashing 1936 electoral victory. Roosevelt was
understandably appalled at this prospect. "When I retire to private life on January 20, 1941," he said,
dramatically revealing his own estimate of the gravity of the impending crisis, "I do not want to leave the
country in the condition Buchanan left it to Lincoln.""
Small wonder, then, that Roosevelt pursued Attorney General Cummings's suggestion to "get rid of the present
membership of the Supreme Court." Given the decades-long agitation against "judicial supremacy," and
among the array of nostrums prescribed at the time for judicial reform, the plan that Roosevelt
advanced on February 5 stood out not for its boldness but for its mildness. It defined no new
constitutional role for the Court and thus left the time-honored system of checks and balances
unperturbed. It did not in fact propose literally to "get rid" of the Court's sitting justices but asked merely
for an expansion, under stipulated conditions, of the Court's personnel, and asked for that expansion in the
larger context of streamlining the entire federal judiciary. Roosevelt's Court plan was no wanton
blunder. It was a calculated risk, and not an unreasonable one. He was wagering a modest challenge to
the tradition of an independent judiciary against the prospect of the entire New Deal's judicial
extinction.
But Roosevelt woefully underestimated the strength of popular devotion to the Court's traditional role. He
also miscalculated badly in his choice of tactics and timing. From the moment of its unveiling, his
Court plan stirred a nest of furies whose destructive power swiftly swelled to awesome proportions, well
beyond the president's ability to control.
What the president called judicial reform a mighty host of critics throatily assailed as "Court-packing."
"If the American people accept this last audacity of the President without letting out a yell to high
heaven, they have ceased to be jealous of their liberties and are ripe for ruin," wrote the columnist
Dorothy Thompson. A fatal elision took root in the public's mind between the Court plan, the
contemporaneous sit-down strikes, and the president's role in each. Somehow, Roosevelt managed to
be perceived as both the acknowledged perpetrator of one affront to traditional notions of
constitutional order (by attacking the Court) and the indulgent patron of another (by remaining
silent on the sitdowns). Americans overwhelmingly told pollsters that they disapproved of the sitdown strikers. Before 1937 was out, 45 percent of respondents in one Gallup poll deemed the
administration "too friendly" to labor."
8
Nor did it help matters that just weeks before his Court message, Roosevelt had asked Congress for
legislation to reorganize the executive branch. The executive reorganization bill was a sensible proposal,
incorporating the recommendations of independent experts to bring the federal executive into line with
the principles of modern management science. But in company with the Court-reform bill, it opened
Roosevelt to charges of seeking "dictatorship" by weakening other branches of government and
aggrandizing the power of the presidency. Ominously, a Gallup poll in the weeks just after the bombshell
Court message—when the furor over the sit-downs was at its height—showed a solid majority (53
percent) opposed to the president's Court proposal!
Roosevelt seemed to have been deserted by the political muses who had guided him so surely
throughout his career. He unaccountably compounded his already abundant errors by shrouding his
intentions in secrecy until the last minute, robbing himself of the indispensable congressional support
that might have come with the lawmakers' sense of participation in the plan's development. The first
that congressional leaders heard of the Court scheme was on the morning of February 5, when
Roosevelt gave them a perfunctory briefing at the White House just hours before his special message
went up to Capitol Hill. Kentucky senator Alben W. Barkley, usually a staunch Roosevelt supporter, later
reflected that in this case Roosevelt was a "poor quarterback. He didn't give us the signals in advance
of the play." In Vice-President Garner's car headed back to the Capitol, House Judiciary Committee
chairman Hatton Sumners of Texas turned to the others. "Boys," he said, "here's where I cash in."
When the bill was read later that day in the Senate, Garner stood in the lobby, ostentatiously holding
his nose and turning his thumb down. A few weeks later, disgusted alike with Roosevelt's silence on the
sit-down strikes and with the Supreme Court bill, Garner betook himself on an extended vacation to Texas.
His departure deprived Roosevelt of crucial leadership in the Congress, where Garner had long
been a representative and now served as presiding officer of the Senate. "This is a fine time to jump
ship.. .. Why in hell did Jack have to leave at this time for?" Roosevelt fumed to Jim Farley. "I don't
think the President ever forgave Garner," Farley concluded.
,
Sumners and Garner were not the only defectors. Many southern Democrats abandoned the president,
fearing that a more liberal Court might open the door to a second Reconstruction that would challenge
white supremacy. Roosevelt may have anticipated defections of that sort, but to his chagrin his Courtreform proposal also alienated many of his formerly reliable progressive allies like Montana's Senator
Burton Wheeler. Though they shared Roosevelt's frustration with the current Court's conservatism,
they objected on principle to any compromising of the judiciary's independence. In a surprising and
major embarrassment to the president, many Democratic liberals also hotly denounced the Roosevelt
plan. New York Democratic governor Herbert Lehman, whom FDR had once described as "my strong
right arm," was among them. "Last week," a newsmagazine reported when Lehman announced his
opposition to the Court plan, "the strong right arm gave [Roosevelt] a jolting blow between the eyes."
As for Wheeler, he emerged as the Court plan's chief opponent in the Senate. During "the hysteria of
the First World War," Wheeler claimed with some hyperbole, "I saw men strung up. Only the federal
courts stood up at all, and the Supreme Court better than any of them." Republicans kept their peace,
quietly savoring the Democratic fratricide.
Wheeler orchestrated a brilliant series of ripostes to the president's proposal. He produced a
devastatingly cogent letter from Chief Justice Hughes, a venerable, bearded figure of imperturbable
dignity and the object of iconic popular veneration as the spirit of the laws incarnate. Hughes
conclusively rebutted Roosevelt's specious claims about judicial inefficiency. To the president's proposal to
enlarge the bench, Hughes delivered a magisterial rebuke: "More judges to hear, more judges to confer,
more judges to discuss, more judges to be convinced and to decide," said Hughes, hardly constituted a
formula for more expeditious litigation.
9
By early March Roosevelt abandoned his arguments about inefficiency and senescence and began
to make his case squarely on the grounds of judicial philosophy, something he would probably have been
better advised to do from the outset. By this time it was too late. The president's deviousness and the
responses his original message had reflexively evoked had put a framework around the Court-reform
story from which it proved impossible to escape: Roosevelt was seeking dictatorial power, his critics
charged, perhaps not for himself, but in ways that a future president could easily abuse. As Wheeler
said in a radio address: "Create now a political Court to echo the ideas of the executive and you have
created a weapon; a weapon which in the hands of another President could ... cut down those guarantees
of liberty written by the blood of your forefathers."
Congress, including large elements of the president's own party, was by now in open rebellion
against the Court-reform plan. The Court itself delivered the killing blows, though in laying
Roosevelt's plan to rest it also opened a new constitutional era. On Easter Monday, March 29, the
Court handed down an opinion in a case that at once tolled the knell for Roosevelt's proposal, even as it
heralded the dawn of a judicial revolution. Like many great cases, this one had its origins in the commonest grit of everyday life. Elsie Parrish was a chambermaid who had swept rugs and cleaned toilets
for nearly two years in the Cascadian Hotel in Wenatchee, Washington, a dusty farm town on the
Columbia River plateau. Upon her discharge in 1935, she asked for $216.19 in back pay, which she
was owed under the terms of a Washington State minimum wage law enacted in 1913. West Coast
Hotel Corporation, the Cascadian's parent company, offered to settle for seventeen dollars. Elsie Parrish
sued for the full amount. The corporation thereupon challenged the constitutionality of the Washington
law.
Chief Justice Hughes himself delivered the majority opinion in West Coast Hotel v. Parrish. The Court
had decided in favor of Elsie Parrish, Hughes declared, speaking with Olympian authority in language
that signaled a new willingness to defer to legislatures on economic matters. Slowly, the significance of
Hughes's pronouncement sank in. Astonishingly, the justices had voted by a five-to-four majority to
uphold the Washington State minimum wage law—a statute effectively identical to the New York law
that the same Court had invalidated by the same margin in Tipaldo only a year earlier!
The decision in Parrish amounted to "the greatest constitutional somersault in history," declared one
commentator. "On Easter Sunday," said another, "state minimum wage laws were unconstitutional,
but about noon on Easter Monday, these laws were constitutional." The key to this breathtaking reversal
was the shift of a single vote. Justice Roberts had sided with the conservative quartet in Tipaldo, but now
he followed Hughes and joined the liberal trio. It was later revealed that Roberts cast his critical vote
in the Parrish case in the justices' conference of December 19, 1936—more than seven weeks before
Roosevelt's February 5 message to Congress. But if Roberts did not change course because of the
specific storm unleashed by Roosevelt's Court-packing plan, it stretches credulity to conclude that he,
and Hughes, were not influenced by the high-pressure front that had been building for many
months, indeed years, over the Court's obstructionist tactics. In any case, Roberts's action decisively shifted
the Court's ideological center of gravity. "By nodding his head instead of shaking it," an observer
noted, "Owen Roberts, one single human being, had amended the Constitution of the United States."
Pundits immediately called Roberts's judicial pirouette "the switch in time that saved nine," a deft
maneuver that spiked Roosevelt's Court reform while ushering in a new jurisprudential regime.
10
Parrish dealt with a state law, not a federal one, but it proved a fateful harbinger. On April 12
the chief justice again spoke for the same five-to-four majority when he delivered the
Court's opinion in the case of NLRB v. Jones and Laughlin, a crucial test of the Wagner
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Little Siberia. "I say good, now Aliquippa become part of the United States." Just six weeks later, the
same majority of Brandeis, Cardozo, Stone, Hughes, and Roberts voted to uphold the unemployment
insurance features of the Social Security Act, and the even more comfortable majority of seven to two
sustained the act's old-age pension provisions.
These several decisions, along with Hughes's letter and Justice Van Devanter's announcement on May
18 of his intention to retire, buried the Court-reform plan. Against all odds, Roosevelt perversely
persisted for a time, but when his loyal Senate majority leader, Joseph Robinson, dropped dead from a
heart attack on July 14, Roosevelt knew he was whipped. Indeed, the rage of the president's opponents
was by then so great that they blamed him for the stress that killed Robinson! The bill's only statutory
residue was a severely diluted Judicial Procedure Reform Act, passed in August, which tinkered with
lower-court procedures but made no provision for new justices.
Father Time, not legislation, eventually allowed Roosevelt to compose a Court more congenial to his
views. He named Alabama senator Hugo Black to fill Van Devanter's seat, weathering a nasty squall over
Black's former membership in the Ku Klux Klan, and he made seven more appointments over the
next eight years. Even the arch-conservafive Justice McReynolds, who allegedly vowed that he would
"never resign as long as that crippled son of a bitch is in the White House," slipped out of his robe in
1941.
Even before Roosevelt was able to staff the high bench with a majority of his own appointees, he had
wrought a momentous judicial transformation. He lost the battle to expand the Court but won the war
for a shift in constitutional doctrine. "We obtained 98 percent of all the objectives intended by the Court
plan," Roosevelt observed in late 1938. The "nine old men"—or at least the youngest of them, Owen
Roberts; in company with Hughes—had proved nimble enough to shift their ideological ground. In
the course of countering Roosevelt's Court- packing plan, they gave birth to what has been rightly
called "the Constitutional Revolution of 1937." The New Deal, especially its core program enacted in
1935, was now constitutionally safe. And for at least half a century thereafter the Court did not
overturn a single piece of significant state or national socioeconomic legislation. In the economic realm,
at least, substantive due process was dead. As one authority concluded in 1941:
The Court has discarded the idea that the laissez-faire, noninterventionist conception of governmental
action offers a feasible approach to the problem of adapting the Constitution to the needs of the Twentieth
Century. Rendered into the idiom of American constitutional law, this means that the National
Government is entitled to employ any and all of its powers to forward any and all of the objectives of good
government. This fundamental point being established ... the principal doctrines of American
constitutional theory, those which have furnished the matrix of the vastly extended judicial review which
developed after 1890, have become largely otiose and superfluous."
11
ROOSEVELT HAD WON THE WAR, but his success furnished a textbook example of a Pyrrhic victory. The
resolution of the Court battle helped to secure the New Deal's achievements to date and cleared the
constitutional pathway for further reforms. Ironically, however, the struggle had inflicted such grievous
political wounds on the president that the New Deal's political momentum was exhausted by mid1937. The way was open, but Roosevelt lacked the means to go forward. Most fatefully, the Court
battle had exposed deep fissures in the ranks of the Democratic Party. With the president's blood on the
water, Democrats who had stewed privately under Roosevelt's leadership now openly unfurled the
standard of revolt.
Jones & Laughlin, noted at the bottom of p. 44.
1. FDR’s court-packing plan was announced on February 5, 1937. This case was argued February
10, and the decision was handed down on April 12. Was the result a complete Court cave-in to
political pressure? A return to John Marshall’s approach to the Commerce Clause? Both?
2. Was FDR’s court-packing plan constitutional; i.e., was it within the power of Congress to
enact? As the Kennedy excerpt shows, there was considerable opposition in Congress to FDR’s
plan. Some Senators, including a number generally supportive of the New Deal, described it as a
“dangerous abandonment of constitutional principle.” What constitutional principle might they
have been referring to?
3. Although many in Congress were not enthusiastic about FDR’s plan, on March 1, 1937, after the
argument and before the decision in Jones & Laughlin, Congress did approve a statute that
extended retirement privileges to Supreme Court Justices (50 Stat. 24). Two months later, seven
Democratic Senators on the Judiciary Committee broke with the President on his “court-packing”
plan, and defeated it in Committee by a vote of 10-8 on June 2, 1937. Interestingly, that same day,
just before the Committee vote, Justice Van Devanter announced his retirement. Final defeat of the
plan came on the floor of the Senate in July 1937. What does this episode say, if anything, about
the institutional respect the Supreme Court can command, even in turbulent times? Did this
episode presage the country’s seeming rapid acquiescence in the Court’s controversial decision in
Bush v. Gore, ending the uncertainty over the 2000 presidential election?
4. Would the result in Jones & Laughlin have been the same if, instead of the giant Jones &
Laughlin, the defendant had been a small, “mom & pop” steel company producing ½ of 1% of the
nation’s output?
United States v. Darby, p. 45.
1. What was Congress regulating in the Fair Labor Standards Act? What was the means chosen
for regulating; e.g., was it regulating manufacture with an effect on interstate commerce, or was
it regulating the use of the channels of interstate commerce?
2. What was the underlying purpose of the statute?
12
3. If Congress can forbid anything from moving in interstate commerce, may it choose any
means it finds appropriate to accomplish that end, including preventing that thing from coming
into existence at all? (That is, regulation “upstream” from interstate commerce.) Similarly, can
Congress regulate all the way to the end use of something that has moved in interstate
commerce? (That is, regulation “downstream”?) See paragraph 1, p. 48.
4. Look at how the Court reads the Tenth Amendment in the last paragraph of the excerpted
opinion (top of p. 48).
What does this say about the Court’s attitude toward preserving state sovereignty, a
matter on which it was formerly so sensitive?
Does the Court’s reading in effect transfer power previously claimed by the Court to the
Congress (more directly accountable to the people), but at a cost to “states’ rights”?
We will return to the Tenth Amendment further below, in the National League of Cities/Garcia
cases.
5. The Darby Court also rejected a “substantive” due process argument; see footnote b, p. 48.
We’ll also come back to that issue later.
6. Consider briefly the role of stare decisis in constitutional cases. Here the Court unanimously
overrules Hammer v. Dagenhart, which had been decided fewer than twenty years earlier.
Should the Court pay more or less respect to precedent when it decides constitutional
issues, as opposed to issues of common law or statutory interpretation? Why or why
not?
The Court has overruled its past precedents a little more than 200 times in 210 years, according
to one count. More than half of these have come in the past half century. (I don’t have a count
of how many of these decisions were on constitutional issues, but I suspect the vast majority
were. Why do I suspect that?)
Wickard v. Filburn, Wirtz, Perez (pp. 48-50):
1. Can Congress regulate prices of goods that flow in interstate commerce? (See Filburn.)
2. What is the relationship between interstate commerce and Roscoe Filburn’s home-grown,
home-consumed wheat? Is the Court’s approach here the end of formalism, and the triumph of
functionalism in interpreting the interstate commerce clause?
3. What kind of showing does the Court demand of Congress, in enacting the statute, to connect
the thing being regulated to interstate commerce?
13
4. Is this federal regulation being forced down poor small farmers’ throats? That is, do you
think the agricultural community generally opposed, or supported, Congress’s enactment of the
Agricultural Adjustment Act?
5. In Wirtz, note that Congress is here regulating state and local governments directly, telling
them what they can pay their employees. Does that matter? Make it harder or easier to sustain
congressional action?
6. Does Perez (50) represent a total abandonment of any judicial limits on the power of
Congress under the commerce clause? Did the Court find any connection between what Perez
did and interstate commerce? Is the approach here consistent with the constitutional approach
of enumerating federal powers?
7. Is there or should there be any difference in measuring Congress’s power over interstate
commerce in the criminal, rather than the civil, context? Could Congress make every crime in
the Model Penal Code a federal crime? Could Congress make tampering with any consumer
product, regardless of whether it moved in or affected interstate commerce, a crime? It hasn’t.
What might prevent Congress from wanting to do these things?
---------------
III. Protection of Other Interests Through the Commerce Clause
Heart of Atlanta/Katzenbach v. McClung, pp. 50-53.
1. What is Congress trying to do here? Did the Civil Rights Act outlaw all racial discrimination
in all lodging places and food serving establishments throughout the country? Where did
Congress draw the line on how far this legislation reached? Is that a meaningful line?
2. We will cover the question later why the Congress (and the Court) relied primarily on the
Commerce Clause to enact the Civil Rights Act, rather than section 5 of the fourteenth
amendment? (The latter gives Congress the power to “enforce” that amendment, including its
clause saying no state shall “deny to any person within its jurisdiction the equal protection of the
laws,” by “appropriate legislation.”
In this connection, can the Court sustain legislation using a constitutional provision the
Congress has not relied on? Assume Congress did not refer to the fourteenth amendment
in the legislative history of the Civil Rights Act. Could the Court have nevertheless
upheld it as within Congress’s power under the fourteenth, and ignored the commerce
clause? Cf. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948) (“The question of
constitutionality of action taken by Congress does not depend upon recitals of power
which it undertakes to exercise”).
3. To what extent does Congress have to have evidence in front of it, as it deliberates over one
of these regulatory measures, of the relationship between the regulation and interstate
commerce?
14
4. To what extent does Congress have to spell out a relationship in formal “findings” in the bill
itself, or in committee reports?
Is it enough that the lawyers for the U.S. lay out the evidence and draw the connections in
briefs in litigation subsequently filed to challenge the statute?
Expressed another way, should the Court attribute reasoning to Congress, or look only to what
Congress actually says? Reconsider this question after Lopez/Morrison, below.
5. From the late 1930s through 1995, was the Supreme Court saying that
--it was not even going to look anymore at whether what Congress is doing exceeds its power
under the commerce clause?
--there are no judicially enforceable internal limits (as opposed to external limits; e.g., the Bill of
Rights) on its Article I powers?
--questions about whether there are internal limits on Congress’s powers are political questions
beyond scrutiny by the courts, like impeachment (see Nixon, p. 21)?
IV. New Limitations at the End of the 20th Century
United States v. Morrison, p.53.
1. The Court’s 1995 decision in Lopez, discussed in Morrison, was the beginning of a change in
direction. We will discuss both cases together. Lopez was the first time since 1937 the Court had
thrown out a federal law as exceeding Congress’s commerce clause authority. (The National
League of Cities decision in 1976, which we will consider at the end of this chapter, threw out a
federal statute on related grounds.) What is the Court’s rationale in these two cases for
invalidating these statutes?
These statutes were enacted by the Congress with substantial popular support, including
support from state and local governments. For example, thirty-eight state attorneys
general supported the Violence Against Women Act (see p. 61, fifteen lines from
bottom), and it had been adopted when the Republicans controlled the U.S. Senate, it was
signed into law by President Ronald Reagan, and the Reagan Administration defended its
constitutionality.
As this suggests, as a matter of politics, Congress finds it very difficult to enact statutes
which expand federal power into areas where states have traditionally been responsible,
unless the states are supportive or at least acquiescing. If such an expansion is stridently
opposed by state and local governments throughout the country, it is almost impossible
for Congress to enact it.
15
Given that fact, why does the Court perceive a need to reinstate a meaningful role for the
judicial branch here? Is this a power grab by the Supreme Court, or is it faithful to the
“checks and balances” architecture that the founding fathers put in the Constitution?
2. Notice how the Court restates what kinds of activities Congress can regulate. How much of a
change in direction does this restatement represent? Are cases like Darby, Wickard v. Filburn,
and Perez still good law after Lopez and Morrison?
3. Is it significant that Lopez is a case where Congress has expanded the role of federal law and
federal courts in criminal matters, which have for the most part traditionally been matters for
states and local governments? (See the earlier questions on Perez, supra this handout)
Is the majority here trying to limit burdens on federal courts? Is that a legitimate reason
to justify holding the statute unconstitutional?
4. Was the Gun-Free School Zone Act thrown out because it was sloppily drafted (or because
Congress didn’t dot all the “I’s” and cross all the “t’s” in the legislative history)?
Is the amendment of the Gun-Free School Zones Act Congress adopted after Lopez (see
footnote a, p. 55) constitutional?
5. The Court notes that Congress normally does not have to make formal “findings” or set out a
statement of purpose in the statutes it enacts. (And Congress often does not do so.)
Why is the Court so insistent that Congress lay out its justification for regarding its laws
as a proper exercise of the power over interstate commerce?
Does that insistence serve any useful purpose (other than making more work for
congressional staffers who must compile the evidence and draft the statutes and
committee reports)?
Congress had made no formal findings of a substantial effect on interstate commerce in
enacting the statute invalidated in Lopez. It had made elaborate findings in enacting the
Violence Against Women Act. How did the Court regard those findings? Note the
debate between the majority and the dissents on this point.
Is the majority just disagreeing with the Congress about what weight to give to the
evidence? Should the Court defer to Congress when there is a rational basis for its
action, or substantial evidence to support the conclusions it draws, even if the Court
disagrees with it? In general, who is better suited to gather and weigh evidence and
resolve such questions of economics and social policy - the legislatures or the courts?
6. Is the Court here starting down the path of creating formalistic categories of activities beyond
the reach of Congress; e.g., crimes (or just guns); family relations (including violence among
them); education? Is that consistent with what the framers had in mind? What Chief Justice
John Marshall had in mind in Gibbons and McCulloch?
16
Notice Rehnquist quotes Marshall on p. 56 (Cohens v. Virginia). Do you think, if he
were alive today, Marshall would have the same opinion about the reach of federal
criminal law, considering the population and economic growth and other changes in the
U.S. in the last two centuries? What about Marshall’s argument in Marbury that, without
judicial enforcement, constitutional limitations are meaningless?
7. How much of a retreat from Lopez and Morrison is Gonzales v. Raich, p. 62 (the so-called
“medical marijuana” case)? Does the majority to a persuasive job of distinguishing those cases?
If Wickard v. Filburn’s aggregation principle still works, does Congress still have the power to
do just about whatever it wants, so long as it uses the right verbal formula?
Consider, for example, what the Court would do with the following statutes:
Making it a federal crime to kill or harass any species that has been found to be
threatened with extinction. Suppose the species in question (listed on the federal
endangered list, and therefore protected by the federal Endangered Species Act, 16
U.S.C. §§ 1531-43) is the Delhi Sands Flower-Loving Fly, which has eleven known
populations, all within an eight-mile radius of each other, all in San Bernardino County in
southern California. The fly has no known commercial value. There would seem to be
no argument other than highly speculative ones that the fly itself has any connection to
interstate commerce, with one exception: Its protection may have some effect on that
commerce. For example, as a result of its coming under the protection of federal law, a
proposed County hospital construction project had to be altered, involving the
expenditure of a few million dollars. What arguments can be made after Lopez/Morrison
to justify federal protection of the fly? See National Association of Home Builders v.
Babbitt, 130 F. 2d 1041 (D.C.Cir 1997); Gibbs v. Babbitt, 214 F.3rd 483 (4th Cir. 2000).
Making the pollution of the tiniest stream or pond a violation of federal law.
Making it a federal crime to be cruel to animals.
Making it a federal crime to willfully fail to pay a past due child support obligation,
regardless of residence. (Cf. 18 U.S.C. § 228, which makes it a federal crime only if the
child “resides in another State.”)
Creating a uniform national product liability law.
A uniform national law of professional malpractice.
Make it a federal crime to possess child pornography, which was not distributed in
interstate commerce, but where the camera had moved in interstate commerce.
Make it a federal crime to possess a machine gun, as applied to a home-made machine
gun where some of the parts had moved in interstate commerce.
17
8. Congress done a few, but has not done most, of these things. Why? What prevents it from
pushing the envelope? Is the answer relevant to figuring out what the role of the Supreme Court
should be here?
9. Is this issue of how far Congress’s power ought to extend under the Constitution one on
which political liberals and conservatives necessarily neatly divide?
How might “law-and-order” conservatives respond to the Court’s resistance to expanding
the reach of federal criminal law?
How might conservative farmers react to a Court decision overruling Wickard v. Filburn
and declaring federal regulation of farming unconstitutional?
How might environmentalists react to striking down the Endangered Species Act, or
animal rights advocates to striking down federal laws regarding cruelty to animals?
Industries often ask Congress to pass laws creating uniform national standards for such
things as pesticide residue in food, etc., to avoid the complications of having to comply
with many different state laws.
Conservatives who champion states’ rights in many areas also support things like limits
on state tort laws, such as a national products liability code which would preempt and
override longstanding state tort laws.
The insurance industry supports a federal arson law.
Social liberals support federal protection of abortion clinics; social conservatives support
a federal ban on partial-birth abortions.
The list goes on and on.
10. Is the revival of judicial scrutiny over Congress’s exercise of its powers over commerce a
convenient way to justify construing federal statutes narrowly, ostensibly to avoid constitutional
questions, even when the text of the statute (and the intent of Congress) would support a broad
construction? For example, in Jones v. United States, 529 UU.S. 848 (2000), the Court
unanimously construed a federal arson statute (making it a federal crime to burn buildings “used
in any activity affecting interstate or foreign commerce”) not to apply to an owner-occupied
residence not used for commercial purposes. This avoided the constitutional question whether
Congress could apply the statute to residences. Similarly, in SWANCC v. Army Corpos of
Engineers, 531 U.S. 159 (2001), a 5-4 majority interpreted the federal Clean Water Act’s reach
(which applied to all “waters of the United Sates”) not to apply to “nonnavigable, isolated”
waters found wholly within a state, and thus avoiding “significant constitutional and federalism
questions.” This approach seems politically shrewd - take a very broad statute enacted by
Congress in an earlier political era, and construe it narrowly by using the Constitution as a
backdrop. This in effect has the Court telling Congress, “we are going to presume you didn’t
intend to force us to decide just how broad your powers are, by construing your enactment
18
narrowly.” This in effect remands the issue back to Congress. But of course Congress is now
more conservative, and unlikely to re-enact the law in broad terms. So the Court in effect
narrows the scope of federal regulation without directly using the Constitution.
NFIB v. Sebelius (2012), p. 65.
1. Is the distinction between Congress exercising authority over “inactivity,” or a failure to
engage in commerce rather than an engagement in it, a constitutionally viable distinction? The
cost of providing medical care to the uninsured involves interstate commerce, the government
argued, and this gives Congress the power to require the uninsured to buy health insurance.
From a constitutional standpoint, is there anything about this mandate that is different from the
typical mandate that automobile drivers must get insurance in order to secure a license to drive?
2. Who is more faithful to precedent, the majority or the dissent? Is there or should there be any
constitutional distinction between Congress limiting Roscoe Filburn from growing more than a
certain amount of wheat for his own consumption and Congress requiring someone uninsured to
buy health insurance? Are people who refuse to buy health insurance engaging in interstate
commerce? Or is that the correct way to frame the question? Don’t Wickard and Raich allow
Congress to reach purely local, non-commercial activity, as an integral part of a broader statutory
scheme that permissibly regulates interstate commerce? Are they still viable precedents after
Sebelius?
3. Does the majority adequately respond to the argument that the health care market is not like
other markets? Just about every individual in the United States will require health care at some
point in their lifetime. Because near universal participation is critical to the underwriting
process, the collective effect of refusal to purchase health insurance affects the national market.
The question is how participants in the health care market pay for medical expenses – through
insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care
funded by third parties. This phenomenon of cost-sharing is what makes the health care market
unique. Does that make requiring advance purchase of insurance based upon a future
contingency an activity that will inevitably affect interstate commerce?
4. Under the majority’s view, could Congress get at the problem of the uninsured another way,
with no constitutional problem? That is, could Congress enact a federal government-run health
care program for everyone (the “single payer” system), the model for Medicare for those over
65, and a system common in Canada, Britain and many other industrialized countries? (The
individual insurance mandate was originally a Republican idea, as a way to get universal
coverage using private markets instead of a single-payer government system. Had the Court, in
the end, struck down Obamacare, it might have, ironically, built political momentum for a
federal-government-run health care system.)
5. Could Congress provide that anyone who does not buy health insurance shall be ineligible for
federal subsidies, or ineligible to buy insurance for the next ten years? Could it provide that the
uninsured shall pay federal income taxes at twice the rate of those who do buy health insurance?
Reconsider these questions after the next section, on Congress’s taxing and spending power.
19
CONCLUDING OBSERVATIONS ON THE COMMERCE CLAUSE
After Sebelius, the question in terms of commerce clause doctrine is whether it is a kind of
unique decision, given the peculiarities of the health care industry and the individual mandate, or
whether instead it is a harbinger of a great determination by the five-justice majority to cut way
back on Congress’s power to regulate the economy. One could argue that either the Court
(1) will confine itself to the very margins - striking down an occasional law where Congress
hasn’t done its homework or drafted cleverly enough - but leaving the vast bulk of federal
regulation intact (in which case one might ask if these marginal results are worth the trouble); or
(2) will act boldly to try to turn back the large twentieth century tide of federal regulation (in
which case it runs a great risk of provoking the kind of institutional crisis that led to its retreat in
1937). (That is, of course, assuming public opinion remains strongly supportive of such
regulation – which it might, even if members of public are often “confused,” as with the classic
line heard during the Obamacare debate, “keep the government’s hands off my Medicare.”)
Remember there are important external limits on the power of Congress to exercise its power
over interstate commerce. These include not only the Bill of Rights (for example, generally
speaking, Congress can’t use its commerce power to squelch speech; e.g., by criminalizing flagburning), but also state governmental immunities emanating from the Tenth Amendment. We
will take the latter up at the end of this chapter.
-------------------
Section 3: TAXING AND SPENDING POWERS
1. TAXING
1. Where are the taxing and spending powers found in the Constitution? Are they an
independent source of congressional power, according to their position in the text?
2. Notice how the Court interpreted Congress’s power to tax between 1922 and 1935 (p. 71), as
creating a kind of distinction between a tax with a regulatory purpose and a tax with a revenueraising purpose. What in the Constitution forbids Congress from enacting a regulatory tax?
Does it depend on whether Congress could regulate the subject directly? If it can regulate
directly, is a tax just a “necessary and proper” means toward a constitutional end?
3. Do (all, most?) taxes have both a revenue raising and a regulatory purpose?
Can any kind of reasonably clear line be drawn between a tax and a penalty? In McCray, cited
in footnote b, the Court upheld a federal tax on yellow margarine that was 40 times the rate of a
federal tax on white margarine? What do you suppose was the purpose of that tax? To raise
revenue for the Treasury? Think about what interest group might have lobbied for that tax, and
why.
20
4. Should the Court inquire about the motive of the legislature in enacting the statute? How can
motive be ascertained, anyway? Might a majority of the 535 members of Congress have 268
different reasons for voting in favor of a measure? Is there a legislative motive that transcends
the sum of the motives of the individual legislators? Is motive the same as purpose?
4. The disparity of precedents the Court created on the power to tax, while not as numerous as
those dealing with the commerce clause, revealed a similar kind of disarray in reasoning and
result.
NFIB v. Sebelius, p. 71.
1. Notice the lineup of Justices on the tax issue. Who is aligned with whom, and how does that
differ from the Justices’ lineup on the commerce clause issue?
2. May Congress use its power under the tax clause even for purposes that would exceed its
power under other provisions of Article I? If so, how useful is the taxing power to escape from
whatever limits the Court might place on the power of Congress under the commerce clause? In
this connection, can, does, and should the Court compartmentalize its decisions into neat
categories (commerce clause, taxing, spending, etc.)? Do decisions in one category (e.g.,
Hammer v. Dagenhart, commerce clause) influence decisions in other categories (e.g., Child
Labor Tax Case)? Should they?
3. How would the dissenters limit Congress’s power to tax?
4. Article I, § 8 also provides that “all Duties, Imports and Excises shall be uniform throughout
the United States.” (Emphasis added) In the few cases construing this provision, the Court has
generally given Congress great deference by, for example, upholding federal taxes that have a
disproportionate impact on some states, or that exempt parts of some states from otherwise
uniform federal taxes, where there is a rational basis for doing so. See, e.g., United States v.
Ptasynski, 462 U.S. 74 (1983), unanimously upholding the exemption, in the federal Windfall
Profits Tax Act of 1980 (which was considered an excise tax), for oil produced in certain parts of
Alaska, mostly north of the Arctic Circle, because of the “fragile ecology, the harsh environment,
and the remote location.”
A Brief Note on the Constitutionality of the Federal Income Tax
Article I, §§ 2 and 9 together require “direct” taxes to be apportioned among the states in
proportion to their populations. At least before computers, this apportionment requirement was
impossible to implement for taxes on income, so the question whether a federal income tax was
constitutional turned on whether it was a “direct” tax. The Supreme Court issued several
confusing decisions on this subject. Compare Pollock v. Farmers Loan & Trust Co., 158 U.S.
601 (1895) (federal income tax a “direct” tax), with Flint v. Stone Tracy Co., 220 U.S. 107
(1911) (corporate income tax not a “direct” tax). The question was put to rest in 1913 by
adoption of the 16th amendment, see p. 23, Appendix B. The following thumbnail sketch of the
background is from the Wall Street Journal, Feb. 27, 1989, p. B-1:
21
The personal income tax was on and off the books in the 19th century, but the
Constitution had to be rewritten before it arrived to stay. Abraham Lincoln used an
income tax in 1862, levying 3% on incomes over $600 and 5% on incomes over $10,000.
By 1866 it was bringing in $311 million, but with the return of peace the tax was dropped
in 1872. Congress tried again in 1894, but the U.S. Supreme Court killed that one a year
later [see Pollock, above].
Pressure for taxes geared to the citizen’s ability to pay, however, kept building. Since the
Founding Fathers, the U.S. had relied almost entirely on whiskey and tobacco taxes for
internal revenue. From 1868 until 1913, in fact, almost 90% of U.S. revenue came from
these two sources. [“Robber barons” and other wealthy individuals paid very little tax.]
The father of the income tax turned out to be Republican President William Howard Taft.
In 1910, with the GOP holding only technical control of Congress (progressive
Republican members, including powers such as Sen. Robert LaFollette of Wisconsin,
often opposed the Administration), and populist sentiment against the wealthy growing,
Taft struck a deal. If congressional leaders would propose an amendment that would
permit a national income tax, he would accept an excise on corporate net income. Both
were swiftly passed.
In February 1913, Wyoming became the 36th state to ratify the 16th Amendment allowing
Congress to tax incomes “from whatever sources derived.” The effects were immediate.
From 1903 to 1915, annual tax collections averaged $281 million. During the 12 years
after 1915, they averaged $2.7 billion.
2. SPENDING
U.S. v. Butler, p. 73.
1. The Court resolved two separate constitutional questions in this case. What were they?
2. All nine Justices agreed on the first issue. Somewhat remarkably, this was a case of first
impression for the Court even though Madison, Hamilton, Story and others had debated it well
over a century before. The reason it took so long for the issue to arise is that the Court generally
takes the view that a taxpayer does not have “standing” to challenge a federal spending program.
We will cover standing in the last section of the course in chapter 12.
3. Why, according to the majority, did the Agricultural Adjustment Act exceed Congress’s
power to spend? Could Congress provide educational grants to state and local governments,
conditioned on their schools meeting certain federal educational standards? Is this different from
Congress providing federal grants to farmers conditioned on their limiting the acreage they
plant?
Steward Machine, p. 74
22
1. Note that the federal tax was on employers, with a credit if the employer paid into a state
unemployment insurance fund. The effect of the federal tax was to encourage (and indeed it was
designed to encourage) the states to set up unemployment insurance funds. because it effectively
invited employers to lobby their state legislatures to do just that, and that is what happened.
2. The issues of coercion and when conditions on spending approach constitutional limits,
discussed here and other spending power cases, arise in several constitutional areas. (For
example, in the individual rights area, can Congress condition receipt of a federal grant on the
recipient’s agreement to limit her speech?) Who was coerced more by the federal programs, the
farmers in Butler or the states in Steward Machine? (Which side do you suppose the states took
in the Steward litigation – did they like or dislike the federal unemployment act?) Is the issue
whether, if Congress may require something directly, it therefore may accomplish it more
indirectly?
3. What is more appropriate for Congress to do - legislate to stabilize the agricultural economy,
or legislate a national unemployment insurance system, available in every state (whether
administered nationally or through the states)?
It seems that most or all states wanted an unemployment insurance system, but were
afraid to adopt it individually because of the “race-to-the-bottom” problem, not wanting
to disadvantage their attractiveness to prospective employers, as against other states who
had no such program. Does that make a stronger case for congressional action than
agricultural depression?
4. Concerning the limitation of spending to the purpose of promoting the “general welfare,” how
much of a limit is that? See note, p. 75. How about a federal bail-out of the city government in
San Francisco from bankruptcy? The city government in Half Moon Bay? How about a
spending $15 million in federal funds a year on what might be described as a city park (the
Presidio)? Building the California Central Valley water project? See Gerlach Live Stock Co., p.
75. Does the Court have any special competence to determine what is in the general welfare?
Could or should the Court examine the practice of congressional “earmarking” – where
individual members of Congress insert in spending measures particular provisions that benefit
their local constituents?
South Dakota v. Dole, p. 75.
1. Could Congress simply legislate directly a uniform national drinking age?
What made this case a little different from other subject matters of federal regulation was
the 21st amendment, which repealed the “great experiment” of prohibition in 1933. That
amendment, even though its text is not so clear, is thought to leave the regulation of
“intoxicating liquors” generally up to the states. That is, it operates as a limit on what
otherwise might be within the authority of Congress under the commerce or other
enumerated powers. [In Granholm v. Heald, 544 U.S. 460 (2005), the Court held that
the 21st amendment did not authorize the states to discriminate against interstate
23
commerce in prohibiting out-of-state (but not in-state) wineries from shipping wine
directly to in-state consumers.]
2. Where do the majority and Justice O’Connor differ on the germaneness of the condition
Congress imposed?
How deferential is each to Congress’s judgment that the lawfulness of teenage drinking
in some states leads to unsafe highways funded with federal money? Or would
O’Connor draw the line at a different place altogether? Do you agree with her that using
federal highway money to encourage controls on teenage drinking is “hardly more
attenuated” than linking such funds to a state moving its state capital?
3. The penalty for a state’s not raising the drinking age is 5% of federal highway money.
Would it make the constitutional issue any harder if the penalty were 25%, or 100%?
It turned out that 5% was enough to convince every single state to raise the drinking age.
Does that suggest the states did not really have a choice? Or that they really were
inclined to raise the drinking age and needed only a slight nudge to do so? Are courts,
such as the Supreme Court, equipped to discern the difference?
NFIB v. Sebelius, p. 78.
1. Notice the lineup of Justices in this part of the case. Who is with whom?
2. Does the majority draw a persuasive distinction between Obamacare’s Medicaid expansion
and the federal exercise of the spending power in Dole or Steward Machine? How important a
precedent is this? How much does it rein in Congress’s power to condition federal spending to
get the results it wants?
3. How might Congress restructure the “Medicaid expansion” provision after this decision?
Could it simply make the penalty for failing to expand loss of 5% of federal funds for Medicaid?
4. Might the spending power still, after Sebelius, be an avenue to reverse Lopez and Morrison
by simple statute? Could Congress condition general support for state education on states
prohibiting guns near schools? Could it condition general federal funding for state courts on
recipient states assuming the obligation to provide women victims of violence a civil remedy in
their state court systems?
5. Are there political limits or checks on Congress’s use of the spending power? What might
they be?
6. Note Congress’s power to tax and spend is subject to external limits, such as the First
Amendment. The Children’s Internet Protection Act, a federal statute, requires libraries
receiving federal funds to install internet filters for children. A facial challenge to it was rejected
by a splintered Supreme Court in U.S. v. American Library Ass’n, 539 U.S. 194 (2003), with
four Justices finding it a valid exercise of the spending power that did not violate library patrons’
24
first amendment rights. Similarly, in Rumsfeld v. Forum for Academic and Institutional Rights,
547 U.S. 47 (2006), the Court unanimously, per C.J. Roberts, upheld the Solomon Amendment,
which required the Department of Defense to deny federal funding to institutions of higher
education that did not offer military recruiters the same access to its campus and students
provided to nonmilitary recruiters receiving the most favorable access. The schools had denied
access because the military was complying with the federal statute which upheld the “don’t ask,
don’t tell” policy allowing gays to join the military if they did not disclose their sexual
orientation. The Court said the denial of federal funds was an appropriate exercise of the
spending power because the schools had a choice whether to accept funds or deny access, and
Congress could have directly imposed the access requirement through its constitutional powers
over the military. The First Amendment was not violated because schools, students, and faculty
were free to voice their disapproval of the military policy.
THE PROPERTY CLAUSE
Now we are going to leave the Casebook briefly to consider two other congressional powers that
have considerable relevance in California and the rest of the West: The property power and the
power over Indian affairs.
There are actually two clauses in the Constitution that deal with property: First, Article I, § 8,
next to last clause (power of Congress to exercise “exclusive legislation” over certain places
under certain conditions - this is usually called the “enclave” clause); and Article IV, §3, clause
2, the so-called property clause. The latter is by far the more important. It provides:
The Congress shall 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.
As suggested by the last part of the sentence, this clause was drafted against the background of
controversy among the thirteen original states over the “Western land claims” asserted by some
of these states.
These claims stemmed from grants from the British Crown to territory in “the West” - across the
Appalachian mountains. Some states (e.g., CT, GA, MA, NY, VA, NC and SC) had them;
others did not. The have-nots (led by MD) disliked the haves’ claims and wanted them
relinquished. The controversy flared both under the Articles of Confederation and in framing the
Constitution. (Eventually the “have” states were persuaded to relinquish their claims to the
national government in the interest of national unity.)
The Articles did not expressly give the Continental Congress any authority over the matter, but
that didn’t stop it from legislating on the subject several times (including the famous Northwest
Ordinance of 1787). These pre-Constitution laws established a system for survey and disposal,
provided guidance for organizing new states out of the territory, and provided for federal
supremacy over land to which the national government retained title, even after new states were
established.
25
The framing of the text of the Property Clause did not excite much discussion. The Federalist
Papers devoted little attention to it, although Madison in Federalist #43 called it a “power of very
great importance,” after noting in Federalist #38 that the Continental Congress had legislated on
the Western territory “without the least color of constitutional authority.” The general
expectation seemed to be that the national government would eventually dispose of this land to
provide for settlement and dispose of war debts with the proceeds.
Early judicial interpretation read the clause broadly, giving Congress a great deal of authority
over the territories. The leading case was United States v. Gratiot, 39 U.S. (14 Pet.) 526 (1840),
which upheld the right of the U.S. to lease minerals in lands it had retained in Illinois after that
state had been created. “[C]ongress has the same power over [territory] as over any other
property belonging to the United States, and this power is vested in congress without limitation.”
Then came an awful turn in the country’s history -- the case of Dred Scott v. Sanford, 60 U.S.
(19 How.) 393 (1857). One of the issues in that case was whether the Property Clause gave
Congress the authority to enact the Missouri Compromise in 1820, which forbade slavery in
Western territories north of a line Congress drew on the map. Congress had previously banned
slavery in the territories governed by the Northwest Ordinance of 1787, and had reconfirmed that
ban after the Constitution and its Property Clause were ratified. Act of Aug. 7, 1789, 1 Stat. 50.
The Court did not have to reach the Property Clause question in Dred Scott, because it first
decided that the slave Scott could not invoke the jurisdiction of the federal courts because, being
African-American, he was not a citizen. But that didn’t stop it from going on to consider the
Property Clause issue. Speaking for the majority, in one of the sorrier judicial opinions in
history, Chief Justice Taney did not discuss or even acknowledge the Court’s prior decision in
Gratiot, or the fact that Congress had legislated with respect to slavery in the territories
immediately before and immediately after the drafting of the Constitution. Taney concluded that
the Property Clause had nothing to do with territory the U.S. acquired after 1787 (such as
Missouri, acquired in the Louisiana Purchase). In short, he drastically limited the reach of the
Property Clause to conclude that Congress had no authority to address slavery in the territories.
Dred Scott’s view of the Property Clause had never before appeared in a Supreme Court opinion.
The net result of the Dred Scott decision was that the Constitution made Congress powerless to
forbid the extension of slavery across the landscape to the Pacific Ocean. This more or less
made the Civil War inevitable, because the slave states had the power to block any constitutional
amendment to overturn Dred Scott.
Here is what Abraham Lincoln said about the Supreme Court in his first inaugural address in
1861:
“[C]onstitutional questions … decided by the Supreme Curt … are .. entitled to very high
respect and consideration in all parallel cases by all other departments of the government.
And while it is obviously possible that such decision may be erroneous in any given case,
still the evil effect following it, being limited to that particular case, with the chance that
it may be overruled … can better be borne than could the evils of a different practice. At
26
the same time, the candid citizen must confess that if the policy of the government upon
vital questions affecting the whole people is to be irrevocably fixed by decisions of the
Supreme Court, the instant they are made in ordinary litigation between parties … the
people will have ceased to be their own rules, having to that extent practically resigned
their government into the hands of that eminent tribunal. Nor is there in this view any
assault upon the court or the judges. It is a duty from which they may not shrink to
decide cases properly brought before them, and it is no fault of theirs if others seek to
turn their decisions to political purposes.”
Shortly after the Civil War commenced, with the southern representatives gone (though with
Taney still on the Supreme Court bench), Congress enacted a law banning slavery in all
territories; see 12 Stat. 432.
Dred Scott was effectively overruled by the 13th amendment, which outlawed slavery. While
that amendment might be construed as otherwise leaving in place Dred Scott’s view of
Congress’s power under the Property Clause, Dred Scott has been so discredited that it almost
never gets mentioned by courts addressing Property Clause issues, and Taney’s peculiar view of
the Property Clause has never attracted any support on the Court since. In 1901, the Court
remarked, in an massive understatement, that “the country did not acquiesce in the [Dred Scott]
opinion, and . . . the civil war, which shortly thereafter followed, produced such changes in
judicial, as well as public sentiment, as to seriously impair the authority of this case.” Downes v.
Bidwell, 182 U.S. 244, 274 (1901). Indeed. Seven hundred thousand soldiers died in the Civil
War, on of the most costly wars in human history up to that point.
Dred Scott focused on Congress’s power over U.S. territory that was not within an established
state. With the admission of new states across the continent and beyond (Hawaii), the typical
Property Clause question today involves the power of Congress to legislate with respect to lands
the U.S. owns within the boundaries of a State. (Forty-five percent of California’s 100 million
acres, for example, is owned by the federal government.) For more on the background and
application of the Property Clause, see Coggins, Wilkinson & Leshy, Federal Public Land &
Resources Law (5th ed. 2002), pp. 46-55, 182-203; Peter Appel, “The Power of Congress
“Without Limitation”: The Property Clause and Federal Regulation of Private Property, 86 Minn.
L.Rev. 1 (2001).
The leading modern case on the Property Clause is Kleppe v. New Mexico, 426 U.S. 529 (1976).
Excerpts from Thurgood Marshall’s opinion for a unanimous Court follow:
At issue in this case is whether Congress exceeded its powers under the Constitution in enacting the Wild Freeroaming Horses and Burros Act.
I
The Wild Free-roaming Horses and Burros Act, 16 U.S.C. ss 1331-1340, was enacted in 1971 to protect “all
unbranded and unclaimed horses and burros on public lands of the United States,” * * * from capture, branding,
harassment, or death.” The Act provides that all such horses and burros on the public lands administered by the
Secretary of the Interior through the Bureau of Land Management (BLM) or by the Secretary of Agriculture through
the Forest Service are committed to the jurisdiction of the respective Secretaries, who are “directed to protect and
manage (the animals) as components of the public lands . . . in a manner that is designed to achieve and maintain a
27
thriving natural ecological balance on the public lands.” s 3(a), 16 U.S.C. s 1333(a). If * * * horses or burros
[protected by federal law] “stray from public lands onto privately owned land, the owners of such land may inform
the nearest Federal marshal or agent of the Secretary, who shall arrange to have the animals removed [from the
private land]. ”2 § 4 of the Act, 16 U.S.C. §1334. * * *
The differences between the [State of New Mexico] Livestock Board and the Secretaries came to a head in February
1974. On February 1, 1974, a New Mexico rancher, Kelley Stephenson, was informed by the BLM that several
unbranded burros had been seen near Taylor Well, where Stephenson watered his cattle. Taylor Well is on federal
property, and Stephenson had access to it and some 8,000 surrounding acres only through a grazing permit issued
pursuant to the [federal] Taylor Grazing Act. After the BLM made it clear to Stephenson that it would not remove
the burros and after he personally inspected the Taylor Well area, Stephenson complained to the Livestock Board
that the burros were interfering with his livestock operation by molesting his cattle and eating their feed.
Thereupon the Board rounded up and removed 19 unbranded and unclaimed burros pursuant to the New Mexico
Estray Law. Each burro was seized on the public lands of the United States and, as the director of the Board
conceded, each burro fit the definition of a wild free-roaming burro under the Act. On February 18, 1974, the
Livestock Board, pursuant to its usual practice, sold the burros at a public auction. After the sale, the BLM asserted
jurisdiction under the Act and demanded that the Board recover the animals and return them to the public lands.
* * * Congress determined to preserve and protect the wild free-roaming horses and burros on the public lands of
the United States. The question under the Property Clause is whether this determination can be sustained as a
“needful” regulation “respecting” the public lands. In answering this question, we must remain mindful that, while
courts must eventually pass upon them, determinations under the Property Clause are entrusted primarily to the
judgment of Congress. * * *
Appellees argue that the Act cannot be supported by the Property Clause. They contend that the Clause grants
Congress essentially two kinds of power: (1) the power to dispose of and make incidental rules regarding the use of
federal property; and (2) the power to protect federal property. According to appellees, the first power is not broad
enough to support legislation protecting wild animals that live on federal property; and the second power is not
implicated since the Act is designed to protect the animals, which are not themselves federal property, and not the
public lands. As an initial matter, it is far from clear that the Act was not passed in part to protect the public lands of
the United States3 or that Congress cannot assert a property interest in the regulated horses and burros superior to
that of the State.4 But we need not consider whether the Act can be upheld on either of these grounds, for we reject
appellees' narrow reading of the Property Clause. * * *
* * * In brief, beyond [dicta in two prior decisions], appellees have presented no support for their position that the
Clause grants Congress only the power to dispose of, to make incidental rules regarding the use of, and to protect
federal property. This failure is hardly surprising, for the Clause, in broad terms, gives Congress the power to
determine what are “needful” rules “respecting” the public lands. And while the furthest reaches of the power
granted by the Property Clause have not yet been definitively resolved, we have repeatedly observed that “(t)he
power over the public land thus entrusted to Congress is without limitations.” United States v. San Francisco, supra,
310 U.S. at 29.
The decided cases have supported this expansive reading. It is the Property Clause, for instance, that provides the
basis for governing the Territories of the United States. Hooven & Allison Co. v. Evatt, 324 U.S. 2, 673-674. . And
even over public land within the States, “(t)he general government doubtless has a power over its own property
2
The landowner may elect to allow straying wild free-roaming horses and burros to remain on his property, in
which case he must so notify the [federal officials]. He may not destroy any such animals, however. § 4 of the Act.
3
Congress expressly ordered that the animals were to be managed and protected in order “to achieve and maintain a
thriving natural ecological balance on the public lands.” 16 U.S.C. s 1333(a).
4
The Secretary makes no claim here, however, that the United States owns the wild free-roaming horses and burros
found on public land.
28
analogous to the police power of the several states, and the extent to which it may go in the exercise of such power
is measured by the exigencies of the particular case.” Camfield v. United States, 167 U.S., at 525. We have noted,
for example, that the Property Clause gives Congress the power over the public lands “to control their occupancy
and use, to protect them from trespass and injury, and to prescribe the conditions upon which others may obtain
rights in them . . . .” Utah Power & Light Co. v. United States, 243 U.S. 389, 405 (1917). And we have approved
legislation respecting the public lands “(i)f it be found to be necessary, for the protection of the public or of
intending settlers (on the public lands).” Camfield v. United States, supra, 167 U.S., at 525. In short, Congress
exercises the powers both of a proprietor and of a legislature over the public domain. Alabama v. Texas, 347 U.S., at
273. Although the Property Clause does not authorize “an exercise of a general control over public policy in a
State,” it does permit “an exercise of the complete power which Congress has over particular public property
entrusted to it.” United States v. San Francisco, supra, 310 U.S., at 30,. In our view, the “complete power” that
Congress has over public lands necessarily includes the power to regulate and protect the wildlife living there.
***
Appellees argue that if we approve the Wild Free-roaming Horses and Burros Act as a valid exercise of Congress'
power under the Property Clause, then we have sanctioned an impermissible intrusion on the sovereignty, legislative
authority, and police power of the State and have wrongly infringed upon the State's traditional trustee powers over
wild animals. The argument appears to be that Congress could obtain exclusive legislative jurisdiction over the
public lands in the State only by state consent, and that in the absence of such consent Congress lacks the power to
act contrary to state law. This argument is without merit.
Appellees' claim confuses Congress' derivative legislativepowers, which are not involved in this case, with its
powers under the Property Clause. Congress may acquire derivative legislative power from a State pursuant to Art.
I, s 8, cl. 17, of the Constitution by consensual acquisition of land, or by nonconsensual acquisition followed by the
State's subsequent cession of legislative authority over the land. Paul v. United States, 371 U.S., at 264; Fort
Leavenworth R. Co. v. Lowe, 114 U.S., at 541-542.5 In either case, the legislative jurisdiction acquired may range
from exclusive federal jurisdiction with no residual state police power, * * * to concurrent, or partial, federal
legislative jurisdiction, which may allow the State to exercise certain authority..
But while Congress can acquire exclusive or partial jurisdiction over lands within a State by the State's consent or
cession, the presence or absence of such jurisdiction has nothing to do with Congress' powers under the Property
Clause. Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but
Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause.
Mason Co. v. Tax Comm'n of Washington, 302 U.S. 186, 197 (1937). And when Congress so acts, the federal
legislation necessarily overrides conflicting state laws under the Supremacy Clause. As we said in Camfield v.
United States, 167 U.S., at 526, in response to a somewhat different claim: “A different rule would place the public
domain of the United States completely at the mercy of state legislation.”
Thus, appellees' assertion that “(a)bsent state consent by complete cession of jurisdiction of lands to the United
States, exclusive jurisdiction does not accrue to the federal landowner with regard to federal lands within the borders
5
Article I, s 8, cl. 17, of the Constitution provides that Congress shall have the power:
“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 . . . .”
The Clause has been broadly construed, and the acquisition by consent or cession of exclusive or partial
jurisdiction over properties for any legitimate governmental purpose beyond those itemized is
permissible. Collins v. Yosemite Park Co., 304 U.S. 518, 528-530 (1938).
29
of the state,” Brief for Appellees 24, is completely beside the point; and appellees' fear that the Secretary's position
is that “the Property Clause totally exempts federal lands within state borders from state legislative powers, state
police powers, and all rights and powers of local sovereignty and jurisdiction of the states,” Id., at 16, is totally
unfounded. The Federal Government does not assert exclusive jurisdiction over the public lands in New Mexico,
and the State is free to enforce its criminal and civil laws on those lands. But where those state laws conflict with the
Wild Free-roaming Horses and Burros Act, or with other legislation passed pursuant to the Property Clause, the law
is clear: The state laws must recede. McKelvey v. United States, supra, 260 U.S., at 359.
In short, these cases do not support appellees' claim that upholding the Act would sanction an impermissible
intrusion upon state sovereignty. The Act does not establish exclusive federal jurisdiction over the public lands in
New Mexico; it merely overrides the New Mexico Estray Law insofar as it attempts to regulate federally protected
animals. And that is but the necessary consequence of valid legislation under the Property Clause.
Appellees' contention that the Act violates traditional state power over wild animals stands on no different footing.
Unquestionably the States have broad trustee and police powers over wild animals within their jurisdictions. Toomer
v. Witsell, 334 U.S. 385, 402 (1948). * * * [As the Court cautioned in Geer v. Connecticut, 161 U.S. 519 (1896),
those powers exist only “in so far as (their) exercise may be not incompatible with, or restrained by, the rights
conveyed to the federal government by the constitution.” “No doubt it is true that as between a State and its
inhabitants the State may regulate the killing and sale of (wildlife), but it does not follow that its authority is
exclusive of paramount powers.” Missouri v. Holland, 252 U.S. 416, 434 (1920) .
Questions on Kleppe:
1. Who owned the burros involved in this case? Is ownership or title relevant to measuring
Congress’s power over them?
2. Notice the specific limitations on Congress’s power in the “enclave” clause (Art. I, § 8, cl. 17,
referred to in § III of the Court’s opinion); i.e., the area must be “purchased by the Consent of the
Legislature of the [pertinent] State,” and the places are used “for the Erection of . . . needful
Buildings.” Justice Marshall addresses this clause, briefly, in his opinion; does he regard these
as meaningful limits?
3. According to this case, is Congress’s power over property broader or narrower than its power
over interstate commerce, taxing, and spending? Measured by the same tests? Subject to the
same limits? How many of these limits are judicially enforceable? Is the property clause
power, for example, limited to serving the “general welfare”?
4. Could Congress use the property clause to reach areas that might be beyond its power under
the commerce clause? For example, suppose the Court held the Endangered Species Act was
beyond Congress’s power under the Commerce Clause, at least as applied to a tiny wild animal
of no known commercial value with a single small habitat far from a state line. Could Congress
enact a statute declaring that this animal was federal property, and bootstrap its way to having
the constitutional power to protect it? Could Congress regulate sources of local air pollution in
southern California in order to protect scenic vistas over the (federally owned) Grand Canyon?
Could it regulate traffic on Doyle Drive (the main artery from downtown San Francisco to the
GG Bridge) in order to protect the (federally owned) Presidio of San Francisco?
===============
30
Congress’s Power over Indians and Indian Affairs
Excerpt from [Felix] Cohen’s Handbook of Federal Indian Law (2005 ed., Nell Jessup Newton,
et al. eds.), §§ 5.01-02, pp. 390-403.
§ 5.01 Sources of Federal Power Over Indians [1]
—
Overview: The Constitution as a Source of Federal Power
The Constitution is the primary source of federal power to regulate Indian
affairs and, as interpreted by the Supreme Court, provides ample support for
regulation of Indian affairs:
[O]ur existing constitution . . confers on congress thepowers of
war and peace; of making treaties, and of regulating commerce with
foreign nations, and among the several states, and with the Indian
tribes. These powers comprehend all that is required for' the
regulation of our intercourse with Indians.2
2
Worcester v. Georgia, 31 V.S. 515, 559 (1832) (emphasis in original).
The text of the Constitution refers to Indians and Indian tribes in three places: the commerce clause and the
Article I and fourteenth amendment apportionment clauses. By excluding "Indians not taxed" from the
population count for apportioning representatives to Congress, the apportionment clauses indicate an
understanding of the separate status of tribes as sovereign entities. 3
The Indian commerce clause also recognizes tribes as distinct political entities by authorizing Congress
"to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
4 The Indian commerce clause was the basis for laws regulating trade with the Indians and requiring
federal approval for land sales by Indian tribes. The Indian commerce clause and the treaty clause are
most often cited today as the constitutional bases for legislation regarding Indian tribes. * * *
U.S. Const. art. I, § 2, el. 3, superceded by amend. XIV, § 2 (removing reference in first Article to slaves as three-fifths
of person while retaining exclusion of "Indians not taxed"); see Nell Jessup Newton, Federal Power over Indians: Its
Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 238-39 (1984). It is now settled that Indian tribal people are citizens
of the United States and of the states within which they reside. Act of June 2, 1924, '43' Stat. 253; see Ch. 14, § 14.01.
Consequently they are counted in the census and, for purposes of apportionment.
4 U.S. Const. art. I, § 8, cl. 3; see Cherokee Nation v. Georgia, 30 U.S. 1, 18-19 (1831).
3
The Treaty Clause
The field of federal Indian law has its roots in international law. Many Supreme Court decisions
regarding Indian affairs drew directly on the law of nations to explain and justify the relationship
between the national government and Indian tribes.22 The treaty clause, granting the power to the
President to negotiate treaties subject to ratification by the Senate,23 has been a principal foundation for
federal power over Indian affairs. Carrying out the obligations and executing the powers derived from
these treaties became a principal responsibility of Congress, which has enacted many statutes
relating to or implementing treaties. 24 The early dominance of the treaty clause as a source of
31
federal authority illustrates that, at least during the first century of America's national existence,
Indian affairs were more an aspect of military 25 and foreign policy,26 than a subject of domestic or
municipal law. 27
As in the case of [some] treaties with foreign nations, treaties with Indian tribes are selfeffectuating. Congress has the power to enact legislation to fulfill obligations incurred in
treaties.30
The power to enter into treaties includes the power to abrogate treaties explicitly or by later
inconsistent legislation. The Supreme Court has applied this principle to treaties with Indian tribes. 31
This analogy has been criticized.32 Nevertheless, the principle has taken root in the law.”
The Indian Commerce Clause
' The Indian commerce clause authorizes Congress "to regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes."
The clause is not limited to regulations of trade or economic activities, or laws that are interstate in
character or impact. The Indian commerce clause is a separate provision from the portion of the
commerce clause dealing with interstate commerce,42 and is broader in scope:
If anything, the Indian commerce clause accomplishes a greater transfer of power from the
States to the Federal Government than does the interstate commerce clause. This is clear enough
from the fact that the States still exercise some authority over interstate trade but have been
divested of virtually all authority over Indian commerce and Indian tribes.43
Although the clause speaks of commerce "with the Indian Tribes," it comprehends transactions with
individual tribal Indians as well as with tribes, including transactions outside of Indian country, and
permits federal regulation of non- Indians doing business on Indian reservations or with tribal
Indians.
Historically, the clause was the basis for the Trade and Intercourse Acts regulating trade, and
requiring approval for land sales by tribes or individual Indians. This congressional regulation has
included very comprehensive control over all forms of trade with the Indians and served to broker the
relations between Indian tribes and outsiders in a wide variety of settings. Many of these laws
are still in effect today.
The commerce clause has become the linchpin in the more general power over Indian affairs
recognized by Congress and the courts. The commerce clause is the most often cited basis for
modern legislation regarding Indian tribes, from legislation protecting tribal cultural resources, to
legislation regulating gaming in Indian country.
Inherent or Implied Power
Most legislation in Indian affairs can be justified as necessary to regulate commerce with the
Indians and to fulfill treaty obligations. In an influential early case, the Supreme Court appeared to
treat federal power over tribes as inherent in national sovereignty. In United States v. Kagama, 50
the Supreme Court sustained the constitutionality of the Indian Major Crimes Act of 1885, the first
statute directly regulating internal tribal affairs by imposing criminal liability on Indians committing
major crimes against other Indians within Indian country. The Court canvassed the enumerated
powers in the Constitution, finding each in turn insufficient. In an opinion not known for its
coherence or clarity; the Court nevertheless upheld the Major Crimes Act on two theories: First, that
only the United States (as opposed to the states) is sovereign over the entire territory of the United
States; and second that the United States' role as the guardian of Indians, Indian tribes, and their
property justifies any legislation enacted in this role of guardian. The first theory is analogous to
that asserted in the field of international affairs in United States v. Curtiss-Wright Export Corp.:
32
That national power in Indian affairs descended to the national government from Great Britain and
therefore does not require an explicit grant of power in the Constitution for its exercise. 53 The
second lacks any constitutional underpinning. The theory that congressional powers need not be based
on explicit constitutional grants has been criticized in the field of international law, however,54 and
should be avoided in the field of Indian affairs as well. 55 Viewed as a theory derived from the
overall structure of the constitution, in which tribes are recognized as semi-autonomous entities, the
power upheld in Kagama is more readily seen as an attribute of national sovereignty that is subject
to all the limitations applying to any other constitutional power. 56 Thus the power may be inherent in
national sovereignty yet cabined by specific constitutional limitations. 57
-------------42
See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989); Cherokee Nation
v. Georgia, 30 U.S. 1, 18 (1831).
43 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 62 (1996); see also Cotton Petroleum Corp. v. New Mexico,
490 U.S. 163, 192 (1989) (The interstate commerce and Indian commerce clauses have very different applications.").
50
United States v. Kagama, 118 U.S. 375 (1886).
33
The Supreme Court has reaffirmed that the power to regulate Indian affairs is derived from the
text and structure of the Constitution. 58
Scope of Federal Authority over Indian Affairs
The courts have recognized that Congress has "plenary and exclusive authority" over Indian affairs.59
The term "plenary" indicates the breadth of congressional power to legislate in the area of Indian
affairs, and the term "exclusive" refers to the supremacy of federal over state law in this area. The
term "plenary power" is also used as a shorthand for general federal authority to legislate on
health, safety, and morals within Indian country, similar to the states' police powers over nonIndians.60 Courts have upheld broad congressional authority to impose federal policy directly on
tribes without their consent.
Preemptive Reach of Federal Indian Law
Some of the most sweeping statements regarding the breadth of congressional power in Indian affairs
are made in the context of preemption of state law. Congressional power to set policy in Indian
affairs supersedes conflicting state laws or state constitutional provisions.66 Congress may
constitutionally enact legislation, execute provisions of a treaty, or ratify agreements with a tribe,
even -if doing affects state interests, such as barring the operation of state hunting and fishing
laws,67 regulatory or tax laws,68 and laws governing such traditional ,state areas of concern as child
weIfare. 69 There is very little room for state „regulation of Indian. tribes because of the breadth of
federal power in this area.
!
Power to Recognize and Alter Status of Tribes
The courts have upheld national power to set the parameters of the government-to-government
relationship with tribes. This power includes the power to recognize and to terminate tribal relations
with the United States and to impose federal laws limiting tribal authority without tribal consent. 7
United States v. Lara, 541 U.S. 193, 200 (2004) (Commerce and treaty clauses and structure of Constitution are
basis for "plenary and exclusive" power of Congress); McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 172, n.7
(1973) ("While source of federal authority over Indian matters has been the subject of some confusion, but it is now
generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and
for treaty making"); see also Morton v. Mancari, 417 U.S. 535, 551-552 (1974) ("Wile plenary power of Congress to
deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself.").
58
United States v. Lara, 541 U.S. 193, 200 (2004); Washington v. Confederated Bands & Tribes o f t h e
Yakima Nation, 439 U.S. 463, 470 (1979).
59
See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) ("central function of the Indian
Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs").
80
34
The following is excerpted from Nell Jessup Newton, "Federal Power Over Indians: Its Sources,
Scope, and Limitations," 132 U. Penn. L. Rev. 195-204 (1984):
Judicial deference to federal legislation affecting Indians is a theme that has persisted
throughout the two-hundred-year history of American Indian law. The Supreme Court
has sustained nearly every piece of federal legislation it has considered directly regulating
Indian tribes, whether challenged as being beyond federal power or within that power but
violating individual rights.' This judicial deference often has been justified by invoking
federal plenary power to regulate Indian affairs and the political question doctrine's
requirement of deference to the political branches.
The judiciary's frequent invocation of federal plenary power over Indian affairs is curious
since the Constitution does not explicitly grant the federal government a general power to
regulate Indian affairs. One suspects, therefore, that, as in other areas of constitutional
law, the terms "plenary power" 3 and "political question"4 are not so much justifications for
decisional outcomes as they are restatements of the Court's intent to defer to the other
branches of government and, concomitantly, to abdicate any role in defining the unique
status of Indian tribes in our constitutional system or accommodating their legitimate
claims of tribal sovereignty and preservation of property.
The unique nature of Indian tribes in our federal system helps to explain this
deference. Through almost two hundred years of constitutional adjudication,
the courts have labored to decipher the Constitution's exquisite tensions
allocating power between the federal and state governments and between
governmental power and individual rights. Yet, when the issue of Indian
tribal sovereignty is placed within this matrix, none of the Constitution's
familiar power allocation rules seem to fit. First of all, Indian tribes are not
merely private associations.' They elect political officers who enact civil and
criminal laws administered by tribal courts, and they hold title to tribal land.
In short, they assert a measure of political sovereignty over the persons and
property within the boundaries of their reservations.'
In a constitutional sense, however, Indian tribes are strange sovereigns. Unlike foreign
countries, dealt with at arms length by the federal government, Indian tribes are subject to
the ultimate sovereignty of the federal government: they govern within the territorial
borders of the United States, and their members are United States citizens. Yet, In dian
tribes are "domestic dependent nations,' and not states of the Union able to claim
rights against the central government through the traditions and constitutional structures
supporting federalism. °
At the same time Indian tribes do not have a full property interest in their lands; federal
power to govern tribes has been translated into federal ownership of an interest in tribal
lands, with a concomitant increase in federal power to confiscate that land. °
The mystique of plenary power has pervaded federal regulation of Indian affairs from the
beginning." While the Articles of Confederation contained a general power over Indian
35
affairs,1° the Constitution enumerates only one power specific to these affairs, the
power "to regulate Commerce . .. with the Indian tribes."" The Plenary Power
Doctrine, a fixture of American Indian law since John Marshall provided its first
justification in 1832," can be traced not only to this commerce power but also to the
treaty, war, and other foreign affairs powers," as well as the property power." Each
has been characterized, historically, as vesting Congress (or the President) with
almost unlimited power in contexts not involving Indians."
"The United States . . shall also have the sole and exclusive right and power of . . . regulating the
trade and managing all affairs with the Indians, not members of any of the States provided that the
legislative right of any State within its own limits be not infringed or violated." U.S. ARTICLES OF
CONFEDERATION art. IX (1777). This language, designed to strike a compromise between state and federal
interests by granting states control over assimilated Indians within their borders white giving the new
government supremacy in dealing with Indian tribes, produced constant federal-state friction during the
period of government under the Articles. See Clinton & Hotopp, Judicial Enforcement of the Federal
Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 ME. L. REV. 17,
23-28 (1980). See generally
13
F. PRUCHA, AMERICAN INDIAN POLICY IN THE FORMATIVE YEARS 28-31 (1962)
(background on article IX of the Articles of Confederation).
36
Questions on Congress’s Power over Indians:
1. Look at the language of the Articles of Confederation addressing Indian affairs, note 13 in the
Newton excerpt. Did the framers of the U.S. Constitution clarify matters, or add to the
ambiguity about federal power in this area? What clauses of the U.S. Constitution might be a
source of congressional power over Indian affairs?
2. Should Congress’s power over commerce “with the Indian Tribes” be measured by the same
standards as Congress’s power to regulate commerce “among the several states”? Could
Congress enact a uniform criminal code or tort law for Indian Tribes, or to apply on Indian
reservations? Is there much less reason to be concerned about intrusion into State affairs in this
area, compared to others? Does the Tenth Amendment have any force in this area, given the
history?
3. Is Congress’s power to legislate with respect to individual Indians and to Indian land as broad
as Congress’s power to legislate with respect to Tribes? Should it be? What about Congress’s
power to legislate to regulate non-Indians who are found on Indian land, or who do business with
Tribes or individual Indians? For example, can Congress adopt a uniform federal criminal and
civil code to Indian reservations, and apply it to non-Indians who live or venture there, or do
business with Tribes or individual Indians?
4. It is fair to say that, for most of the Nation’s history, Congress’s power over Indian affairs
was regarded as far greater than Congress’s power over interstate commerce. Why? (It’s also
fair to say that the Court often does not separate tradition, history, and precedent from
constitutional law in discussing congressional actions in the area of Indian affairs.)
-----------------
Section 4. FOREIGN AFFAIRS POWER
Missouri v. Holland, p. 81.
1. What was the constitutional source of Congress’s power to enact the Migratory Bird Treaty
Act? Absent the treaty, what constitutional powers of legislation might have supported its
enactment by Congress?
2. Why does a treaty by itself nullify inconsistent state laws? Recall that the legal effect of a
treaty on state law was the underlying issue in Martin v. Hunter’s Lessee, p. 14.
Consider also that Article I, § 10 prohibits states from, among other things, entering into
“any treaty, Alliance, or Confederation, nor any Agreement or Compact” with “a foreign
Power.”
3. Can Congress use the treaty power to circumvent other limitations on its power?
37
Could it have entered into a treaty with Canada in 1923 banning child labor,
circumventing Hammer v. Dagenhart?
Could it now enter into a treaty banning guns near schools (at least in border states)? Or
treaties that provide civil remedies for certain kinds of violence toward women?
Could it enter into a treaty to protect endangered species worldwide, and then act
domestically to protect the Delhi Sands Flower-Loving Fly? Consider the analogy to the
war power, and the decision in Woods v. Cloyd W. Miller Co., 338 U.S. 138 (1948),
which upheld the extension of federal rent control under the war powers for some years
after World War II had ended.
Could it enter into a treaty calling for strict controls on greenhouse gas emissions to
safeguard the atmosphere and head off catastrophic climate change, and then regulate
every single emission in the country?
4. In American Insurance Ass’n v. Garamendi, 539 U.S. 396 (2003), a slim majority of the
Court found that California’s Holocaust Victim Insurance Relief Act was preempted by the
President’s authority to conduct foreign policy. [Notice the case involved both federalism
concerns that we are addressing here - the scope of national power vis-a-vis the states - and also
so-called “horizontal” separation of powers - Congress’s power versus the President, which we
will take up later.] In the early 1990s, lawsuits were filed by Holocaust survivors seeking
restitution against insurance companies to recover on life insurance polices effectively
confiscated by the Nazi government. Eventually, Germany and the U.S. President agreed to a
deal – not embodied in a formal treaty - which provided victims some compensation through a
foundation established specifically for that purpose. Part of the deal was that the President
would encourage federal and state courts and state and local governments to respect the
foundation as the exclusive method of compensation. The California law sought to provide
compensation to victims outside the foundation process, and the U.S. objected. The majority,
through Souter, found preemption despite the fact that (1) unlike other cases (such as Dames &
Moore v. Regan, which we will take up on p. 101, below) here the claims were made against
private companies, not foreign governments; and (2) the settlement contained no express
preemption clause. Souter’s opinion concluded that the California law compromises “the very
capacity of the President to speak for the Nation with one voice in dealing with other
governments to resolve claims against European companies arising out of World War II.”
Ginsburg, joined by Stevens, Scalia, and Thomas [a highly unusual combination,
philosophically], dissented, on the ground there was no clear statement of preemption in the
agreement. Why do you suppose the President did not, in the agreement, address its effect on
state law?
5. What about using the treaty power to circumvent Bill of Rights limitations; e.g., could
Congress use the treaty power to legislate that those accused of terrorism will be tried
summarily, without a jury? The post-9/11 anti-terrorism measures adopted by the
Administration (and to some extent by Congress) raise many questions along this line.
38
6. Regarding the power to legislate in foreign affairs (as opposed to enter into treaties), where
does this power come from? The enumerated powers granted by the Constitution, plus the
necessary and proper clause?
7. In measuring Congress’s power over foreign affairs, should the “political question” doctrine
come into play more readily than in domestic affairs?
8. We’ll come back to the foreign affairs/treaty area toward the end of the course, when we take
up horizontal separation of powers.
Section 5. INTERGOVERNMENTAL IMMUNITIES
I. Origins -- McCulloch revisited, p. 82.
1. Notice how Marshall rejects the state’s argument that the Constitution leaves the states the
power to tax federal instrumentalities “in the confidence that they will not abuse it.” Does he
hint at any difference in analysis between a state taxing a federal instrumentality, and the federal
government taxing a state instrumentality?
2. Was the Maryland tax levied on all banks operating in the state? If not, on which banks?
Would a tax on all banks have encountered more resistance in the state legislature?
A. State Immunity from Federal Taxation:
1. Study the first paragraph at the top of p. 83 closely. As noted there, for a time, the Court gave
state officials federal broad immunity from federal taxes. Should federal taxes on states be
viewed exactly the same way as state taxes on the federal government? During the period the
Court came to embrace what was sometimes known as the “dual sovereignty” doctrine – which
implied that the sovereigns (state governments and federal government) were equal, and each
was entitled to the same amount of immunity from the other. Is that equality of sovereignty, and
by implication, an equality of immunities from each other, a correct way of viewing the
arrangement the Constitution created? What are arguments the two situations are different? Is
there a structural or political difference in how the national government regards the states and
vice-versa?
2. Notice also that the Court has never denied that states may have some immunity from federal
taxation in some cases, but it has implied that the scope of immunity is rather narrow.
Specifically, in the last three-quarters of a century, the Court has never struck down a federal tax
on a state or its activities, agencies, or property, unless it discriminated against state employees.
3. For example, in which of the following situations might states be immune from federal
taxation?
Could the federal government apply a general federal tax on bottled water plants to a
state-owned bottling plant? Could it apply a general federal tax on airplanes to planes
owned by a state? Does it make any difference what the state planes are used for; e.g.,
39
for transporting the governor around, or for state police business, or some other state
purpose?
Could Congress apply a general federal tax on property to all state-owned property?
Including the grounds of the State Capitol?
Could Congress tax the income private individuals receive in the form of interest earned
on state or local municipal bonds? The federal Internal Revenue Code has always,
generally speaking, exempted such income from federal taxation, with few exceptions.
Note that this allows states and local governments to borrow money and pay interest
substantially below market rates; that is, the federal tax exemption essentially subsidizes
these activities of state and local governments. The states can, and do, create political
subdivisions (such as a port or airport or bridge authority or a park district; e.g., the
Golden Gate Bridge Authority) and authorize them to issue bonds to capture the benefits
of the federal exemption.
4. Why do you suppose, with few exceptions, the Congress has preserved this exemption for
private taxpayers, even in times of massive budget deficits? (Consider also that New York v.
United States, noted on p. 83, upheld the application of a federal tax on bottled water to a
bottling plant owned by the state of New York. A few years later, at the behest of the New York
congressional delegation, Congress exempted New York state-bottled water from the tax.)
5. Who is better equipped to weigh the federal and state interests involved in these
intergovernmental immunity issues, the Congress or the federal courts?
B. Federal Immunity from State Taxation:
1. Notice also that since McCulloch, the Court has “never questioned absolute federal immunity
from state taxation without the consent of Congress.” (p. 83) This means that federal immunity
from state taxation is not congruent with the state immunity from federal taxation. Why? Might
one say the courts have a useful role to play to protect the national government from the states,
but not the other way around?
2. Is federal land (e.g., military bases, national forests, national parks) exempt from state or local
property taxation?
Is that fair if, say, the children of military or other federal employees who live on this
property attend local public schools paid for by local property taxes?
3. Could Congress act to provide a remedy? Could it reverse the McCulloch result by statute?
Exercising what constitutional power?
Is that odd - to allow Congress to overrule a Supreme Court decision interpreting the
Constitution by means of a simple piece of legislation, not a constitutional amendment?
40
4. To the extent such a simple, legislated reversal of a Supreme Court decision is possible,
should that influence the Court in how it approaches these issues?
========
II. State Immunity from Federal Regulation (pp. 83-95)
1. Did the Fair Labor Standards Act (involved in Wirtz, National League of Cities (NLC), and
Garcia) single out state and local governments for regulation? Discriminate against state and
local governments in any way?
2. What was responsible for the Supreme Court’s reversal of NLC in Garcia? Which Justice
switched his vote, and why? Which group of Justices - the majority in NLC or the majority in
Garcia - may be characterized as “judicial activists”?
3. What is a “traditional” governmental function? Are there such things as “uniquely
governmental” functions? What might they be?
Police protection? (I’ve seen estimates that there are more private security forces in the
U.S. than there are governmental police.)
Firefighters? (A number of localities now hire private firefighters by contract.) Schools?
Mails (cf. FEDEX; UPS)?
Notice, too, how the boundaries between public and private are constantly shifting through the
political process; e.g., airport security employees have become federal employees in the wake of
9/11. Is trying to categorize governmental functions as “traditional” or “unique” like trying to
categorize commerce as involving “production” or “manufacturing,” or like trying to divide
government into “proprietary” and “governmental” functions (see Wirtz, p. 83, and the
paragraph at the top of p. 85)?
4. Does the Garcia majority or dissent have the better of the argument over whether the Court
has any useful role to play here, or whether it should leave the matter to the Congress and the
states to fight out politically?
Is the Garcia dissent asking too much when it says the political process should guarantee
(emphasis added) that “particular exercises of the commerce clause power will not
infringe on residual State sovereignty”? See lines 3-4 on p. 87. Does that set the bar too
high? Is such perfection possible?
Based on the court opinions we have read, would you agree with the dissenters that
“judicial enforcement of the Tenth Amendment is essential to maintaining the federal
system ... in the Constitution”? Did the federal system fall apart between 1935 and
1995? Did states wither away when the Court wasn’t “protecting” them as a matter of
constitutional law?
41
6. On the other hand, is the majority asking too much by saying that the Supreme Court has no
role to play in policing this aspect of federalism?
Suppose Congress reenacts the federal Age Discrimination in Employment Act and
makes a “plain statement” that it applies to state judges (see Gregory v. Ashcroft, p. 88).
Is that constitutional?
Or suppose Congress enacts a statute that says:
Our thorough investigation has shown that Nevada’s location of its seat of
government in Carson City, a backwater community not part of any modern
transportation network, has a serious adverse effect on interstate commerce, and
therefore the State shall move its seat of government, within five years, either to
Reno or Las Vegas.
Is that constitutional after Garcia? Cf. Coyle v. Smith, 221 U.S. 559 (1911), holding that
Congress had no power to condition a state’s admission to the Union on its promise not to
move its capital for a period of years.
7. Consider more broadly SCOTUS’s role in the governing process: Is it better equipped, and
more needed, to protect individual rights against governmental action, or is it better equipped and
more needed to protect units of government against each other? We will explore that more in
connection with Carolene Products footnote 4, pp. 189-90.
8. Notice the debate between the majority and the dissent about how much the political process
in fact protects state interests in Congress. The dissent cites such things as the shift in election of
Senators from state legislatures to the people directly (see the 17th amendment, adopted in
1913), the decline of political parties, the rise and proliferation of the national media (FOX,
CNN, etc.), and the surpassing importance of fundraising (especially outside one’s district) in
running for Congress, as evidence that the structural and process protections for states in the
national political process have eroded. See footnote 9, p. 87. Should these political and cultural
factors be taken into account by the Supreme Court in deciding the constitutional issue here?
9. Should the Court have paid more attention to the virtues of stare decisis here?
NLC overruled the seven-year-old decision in Wirtz; and Garcia overruled the nine-yearold decision in NLC. Is NLC the equivalent of Hammer v. Dagenhart, and Garcia the
equivalent of Darby?
Did the Court in these cases essentially replay, in a compressed time frame, the
progression of Supreme Court Commerce Clause decisions from McCulloch, Champion,
Shreveport through Hammer v. Dagenhart, Carter Coal, Jones & Laughlin, Darby, and
Wickard? (Of course, those decisions involved congressional regulation of the private
sector; here, the question is congressional regulation of state and local governments.)
42
10. Did the Court effectively undercut Garcia by its decision in Gregory v. Ashcroft (p. 88)
adopting a “plain statement” rule requiring Congress to make its intention to alter the “usual
constitutional balance” “unmistakably clear” in the text of the statute? What purpose does such a
“plain statement” rule serve?
Is it a constitutional rule? Or is it a rule derived from the constitution but applied as a
rule of statutory interpretation? Does it make any difference how it’s described?
Cf. the discussion earlier in this handout of Jones v. U.S. and SWANCC, and the use of statutory
interpretation devices to presume Congress is not pushing the constitutional envelope on
interstate commerce.
Printz v. U.S., p. 88.
1. New York v. United States, the 1995 decision discussed in some detail in Printz, was the case
that started the change of direction in this area.
2. There is no doubt that states must apply and enforce federal law when Congress acts within
its constitutional authority. The Supremacy Clause mandates that result. Here the question is
whether Congress may, in the legislation at issue in Printz, require the states to administer
federal law. Is the degree of intrusion relevant in deciding its constitutionality? Is the Court
weighing state and federal interests here in a balancing test?
3. In both New York and Printz, was there any constitutional objection to the federal
government taking complete responsibility for regulating the areas involved (low-level
radioactive waste disposal and regulating the sale of handguns). That is, could Congress have
ousted the states from any role?
If the answer is yes, then what Congress actually did in each case was to give the states
more of a role than they otherwise might have had. What can be constitutionally
objectionable about that? Does it have to do with governmental accountability? See
footnote e, p.91, and accompanying text.
4. Should considerations of practicality influence the constitutional outcome here? Might they
justify allowing Congress sometimes to command the states to help? Suppose a credible threat
of a chemical or biological weapons attack leads Congress to require universal inoculation of
citizens. The federal government could do this directly. But it would be far quicker and easier to
do through state or local schools, hospitals, and public health departments. (The federal
government lacks the equivalent infrastructure or machinery.) Constitutional?
5. What alternatives do these cases leave to the Congress in dealing with the states? One option
would seem to be to preempt State involvement altogether, as suggested in the preceding
paragraph.
Would this path, if taken, be more of an interference with state policy prerogatives?
43
Is the result of these cases to put more emphasis on the “etiquette” than on the
“substance” of federalism?
Another option might be to use the spending power and conditions attached to federal
money to induce the states to play a role.
Could the national government circumvent New York and Printz by entering into
international treaties governing low-level radioactive waste and gun control, and then
implement the treaties by the same legislation struck down in those cases?
6. In its argument in defense of the statute in Printz, the government tried to distinguish New
York on the ground that there the federal government in essence commanded the state to
formulate a policy on a question - either to enact and enforce federal regulations dealing with
low-level radioactive waste, or to take title to and financial responsibility for such waste;
whereas in Printz the federal government in essence commanded already-existing state
administrative machinery to help implement a federal law. Was Justice Scalia correct in
rejecting the distinction?
7. How far do you think the Court might be prepared to go in this crusade for protecting the
states? (Recall the same question was asked earlier, in connection with the
Lopez/Morrison/Sebelius cases.)
Will it go all the way to revive the once-discredited doctrine of “dual sovereignty”; i.e., to
revive state tax and regulatory immunity on a basis fairly equivalent to federal immunity
from state taxation/regulation?
Or will it stop somewhat short of that? Consider, for example, whether Congress can
require states to report statistics and information on crime, child abuse, missing children,
etc. to federal authorities. See footnote a and accompanying text in O’Connor’s
concurring opinion, p. 92. Can Congress require the states to withhold federal taxes from
state employee wages and report the amounts to the IRS? Does Reno v. Condon, pp. 9495, suggest the Court’s objective here is modest, not revolutionary? Is that OK because
the Congress there is just regulating the states as participants in the information vending
market, rather than as sovereign entities? (We’ll deal with the states as “market
participants” in another context later on in the course.)
8. One might ask whether the sovereignty of states has really been threatened all that much by
the expansion of the scope of federal regulations and other programs in the past several decades.
Has the national political tide already turned away from federal expansion and toward more
authority for states, wholly apart from Supreme Court decisions? Is it necessary or desirable for
the Court to become involved?
===============
With regard to all the cases we’ve covered in this chapter, notice the lineup of Justices on
underlying issues. One might say that the “liberal” Justices defer to the more political branches,
44
are comfortable with reducing the role of the Court, and are confident that structural protections
work.
The “conservative” Justices show more confidence in judicial competence to oversee the actions
of the more political branches, are comfortable expanding the role of the Court, and distrust
structural safeguards.
It is interesting to compare this division with the lineup of Justices in Court decisions involving
the government versus the individual in areas such as free speech. There the “liberals’ tend
toward an expanded role for the courts, and not defer much to the more political branches; the
“conservatives” tend to do the opposite.
45