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1 VOLUME I: SOURCES OF POWER AND RESTRAINT CHAPTER 2: CONGRESS AND THE DEVELOPMENT OF NATIONAL POWER Chapter Outline Notes on Excerpted Cases Questions for Thought and Discussion Multiple Choice Questions Essay Questions Hypothetical Problem for Classroom Discussion or Essay Examination Introduction of Topic in Lecture Questions for Website CHAPTER OUTLINE: Structural Aspects of Congress Constitutional Sources of Congressional Power The Power to Investigate Regulation of Interstate Commerce Taxing and Spending Powers Congressional Enforcement of Civil Rights and Liberties McCulloch v. Maryland (1819) Watkins v. United States (1957) Barenblatt v. United States (1959) Gibbons v. Ogden (1824) Hammer v. Dagenhart (1918) Carter v. Carter Coal Company (1936) National Labor Relations Board v. Jones &Laughlin Steel Corporation (1937) Wickard. Filburn (1942) Heart of Atlanta Motel v. United States (1964) Katzenbach v. McClung (1964) United States v. Lopez (1995) Gonzales v. Raich (2005) United States v. Butler (1936) Steward Machine Company v. Davis (1937) South Dakota v. Dole (1987) South Carolina v. Katzenbach (1966) City of Boerne v. Flores (1997) NOTES ON EXCERPTED CASES:

2 McCulloch v. Maryland (1819). In 1791 Congress had granted a twenty-year charter to the Bank of the United States. In 1816, five years after the charter expired, Congress established a second Bank of the United States, once again on the basis of the twenty-year charter. For a variety of reasons, including its heavy speculation and alleged fraudulent practices, the Bank soon became the center of political controversy. Eight states passed legislation designed to prevent or discourage the Bank from doing business within their jurisdictions. Maryland chose the latter course by levying a tax on the Bank s Baltimore branch. A penalty of $500 was imposed for each violation of the tax measure. James W. McCulloch, cashier of the Baltimore branch, violated the Maryland statute by refusing the pay the tax, and a judgment was rendered against him by the Baltimore County Court. Agreeing on a statement of facts, the Maryland attorney general and federal officials converted this legal action into a test case on the constitutionality of the state law and, ultimately, of the Bank itself. Critics of the Bank argued that Congress had no constitutional warrant to charter a national bank and that, in any event, the states were well within their authority to impose a tax on the bank s operations. The Maryland Court of Appeals upheld the state s tax on the National Bank, and the United States Supreme Court took the case at McCulloch s behest. In a strong show of support for the national government, the Supreme Court unanimously reversed the Maryland Court of Appeals. Chief Justice Marshall delivered the Opinion of the Court, asserting that although none of the enumerated powers of Congress explicitly authorized the incorporation of a bank, the Necessary and Proper Clause provided the textual basis for Congress action. In keeping with his general view of the Constitution as an adaptable instrument of government, Marshall construed the Necessary and Proper Clause broadly, concluding that it was not confined merely to authority that was indispensable to the exercise of the enumerated powers. Rather, it was sufficient for Congress to adopt appropriate means to carry out its legitimate objectives. Among these were the powers to tax, to coin and borrow money and to regulate commerce. In Marshall s view the national bank was an appropriate means of achieving these broad objectives, and was accordingly permissible under the Necessary and Proper Clause. While the McCulloch case is critically important to the issue of Congressional authority, in particular, the doctrine of implied powers, it is equally significant with respect to basic issues of American federalism. Accordingly, students might wish to reread McCulloch at this point. Chief Justice Marshall provided one of the most forceful statements of national supremacy in this decision, broadly interpreting the Necessary and Proper Clause as conferring on Congress the implied power to establish a national bank. The Court not only upheld expanded Congressional powers, but also struck a blow against states rights by invalidating a Maryland law imposing a tax on the Baltimore branch of the Bank. Invoking the Supremacy Clause of Article VI, John Marshall declared that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared. Watkins v. United States (1957). The Supreme Court reversed a conviction for contempt of Congress in a case where a witness had refused to answer questions put to him by a

3 subcommittee of the House Un-American Activities Committee. The witness, John Watkins, answered questions about his own beliefs and activities, but refused to discuss the activities of other individuals, saying: I am not going to plead the Fifth Amendment, but I refuse to answer certain questions that I believe are outside the scope of your committee s activities... I do not believe... that this committee has the right to undertake public exposure of persons because of their past activities. The Supreme Court reversed Watkins conviction primarily on procedural grounds, holding that he had been denied due process of law. Writing for the Court, Chief Justice Warren observed: The statement of the Committee Chairman in this case, in response to the petitioner s protest, was woefully inadequate to convey sufficient information as to the pertinency of the questions to the subject under inquiry. The Court also expressed concern that First Amendment values were being threatened by HUAC s public hearings. In dissent, Justice Clark accused the majority of mischievous curbing of the informing function of the Congress. Barenblatt v. United States (1959). Lloyd Barenblatt, a former college professor, was subpoenaed by a HUAC subcommittee looking into communist infiltration of higher education. Eschewing the 5th Amendment, Barenblatt refused to answer questions on the ground that Congress did not have the authority to inquire into the political beliefs and associations of citizens. Dividing 5-4, the Supreme Court upheld Barenblatt s conviction for contempt of Congress. Applying a balancing test, Justice John M. Harlan (the younger) held for the majority that the public interest in exposing Communist infiltration outweighed the witness First Amendment rights in refusing to answer questions. The Barenblatt decision went a long way toward deflating Court-curbing efforts and in Congress. Gibbons v. Ogden (1824). In this case the Supreme Court struck down a steamboat monopoly granted by the state of New York to Robert Fulton and Robert Livingston. Aaron Ogden succeeded to the ownership of the Fulton-Livingston interest, which extended to commercial steamboat traffic between New York and New Jersey. Thomas Gibbons challenged this exclusive grant on the ground that it interfered with the power of Congress to regulate commerce among the states. Gibbons was licensed under federal law to engage in the coasting trade--commerce and navigation in coastal waters--and he contended that this authorization gave him the right to transact business of an interstate nature within the boundaries of New York, irrespective of that state s monopoly grant to others. In the course of declaring the New York steamboat monopoly unconstitutional, Chief Justice Marshall wrote expansively about the scope of congressional power embodied in the Commerce Clause. In this instance an obvious conflict existed between the federal licensing provision and the state grant of monopoly. Invoking the Supremacy Clause of Article VI of the Constitution, Marshall resolved this conflict in favor of the national government. He went on to assert that the power of Congress over commerce among the states was plenary--that is, full and complete--and subject to no competing exercise of state power in the same area. The federal law under which Gibbons operated was a modest exercise of that plenary power, but it was enough to warrant invalidation of the law because the monopoly granted by the state interfered with the commercial privileges provided by the federal government. Although Gibbons v. Ogden is of great

4 importance as the first Supreme Court decision recognizing broad Congressional authority to regulate commerce, it is also important in illustrating the relationship between state and national regulatory power in this field. In terms of federalism, the thrust of Gibbons v. Ogden was that states could not impede the efforts of Congress to regulate commerce among the states. But the Court stopped short of holding that states had no power whatsoever to regulate interstate commerce. Hammer v. Dagenhart (1918). A 1916 federal statute prohibited the interstate shipment of goods manufactured in violation of certain standards governing the employment of child labor. Dagenhart, whose two minor children were notified that they were being discharged from the North Carolina cotton mill where they worked, brought suit to challenge the constitutionality of the Act. Hammer, the U.S. Attorney General, appealed from a decree enjoining enforcement of the Act. Relying on the Tenth Amendment, the Supreme Court upheld the injunction and struck down the statute (5-4 vote). Writing for the Court, Justice William R. Day characterized the statute as an invasion by the federal power into an area reserved to the states by the Tenth Amendment. In Day s view, the regulation of the conditions of work in mines and factories was a purely local matter to which federal authority does not extend. Dissenting, Justice Holmes insisted that the act did not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across state lines they are no longer within their rights. Carter v. Carter Coal Company (1936). The Bituminous Coal Act of 1935 created a national commission with authority to regulate wages and prices for the soft coal industry. A 15% tax was levied on all coal sold at the mine and producers who accepted the federal regulations were entitled to a 90% rebate of assessed taxes. Carter, a stockholder in the Carter Coal Co., brought suit to enjoin the company from paying the tax or complying with the code. Dividing 6-3, the Supreme Court declared the Act unconstitutional. This decision reaffirmed the distinction between manufacturing and commerce and extended the principle to the differentiation of mining and commerce. N.L.R.B. v. Jones-Laughlin Steel Corp. (1937). In a proceeding conducted under the authority of the National Labor Relations Act of 1935, the National Labor Relations Board found that the Jones-Laughlin Steel Corporation had engaged in unfair labor practices. The NLRB ordered the company to cease and desist. Jones-Laughlin refused to comply and the NLRB petitioned the Court of Appeals for an enforcement order. The Court of Appeals denied the petition, holding the order to be beyond the power of the national government. The Supreme Court reversed, dividing 5-4. Writing for the Court, Chief Justice Hughes brushed aside the long-standing distinctions between commerce and manufacturing, between direct and indirect burdens on commerce, and between activities that directly or indirectly affected commerce. Wickard v. Filburn (1942). This decision nicely illustrates the post-new Deal Supreme Court s perspective on the Commerce Clause. At issue was the constitutionality of a federal acreage allotment for wheat. The specific issue consisted of a farmer s raising a

5 wheat crop in excess of the prescribed allotment not for sale or distribution in interstate commerce but for his own consumption. Writing for a unanimous Court, Justice Jackson concluded: Even if appellant s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as direct or indirect. Heart of Atlanta Motel v. United States (1964). Here the Supreme Court unanimously upheld the public accommodations section of the 1964 Civil Rights Act as a proper exercise of the commerce power. The motel in question did a substantial volume of business based on the interstate travel of its patrons. The Court ruled that its racially restrictive practices could impede commerce among the states and could therefore be appropriately regulated by Congress. Katzenbach v. McClung (1964). In a companion case to Heart of Atlanta Motel v. U.S., the Supreme Court went even further by recognizing the power of Congress under the Commerce Clause to bar racial discrimination in a restaurant (Ollie s Barbecue in Birmingham, Alabama) patronized almost entirely by local customers. The Court found a connection with interstate commerce in the purchase of food and equipment from sources outside Alabama. Justice Tom Clark s opinion for the Court asserted that [t]he absence of direct evidence connecting discriminatory restaurant service with the flow of interstate food, a factor on which the appellees place much reliance, is not, given the evidence as to the effect of such practices on other aspects of commerce, a crucial matter. Clark stressed that Congress had ample basis for the conclusion that established restaurants in such areas sold less interstate goods because of the discrimination, that interstate travel was obstructed directly by it, that business in general suffered and that many new businesses refrained from establishing there as a result of it. He concluded that Title II was plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. The Court s decision effectively muted the legal controversy over the constitutionality of Title II and its applicability to places of public accommodation throughout the country. United States v. Lopez (1995). Here a closely divided Supreme Court invalidated the Gun- Free School Zones Act of 1990, a federal statute criminalizing the possession of a firearm in or within 1,000 feet of a school. As constitutional authority for this statute, Congress had relied on its power to regulate interstate commerce. Five members of the Court rejected this justification. Writing for the majority, Chief Justice Rehnquist, joined by Justices O Connor, Scalia, Kennedy, and Thomas, asserted that the Gun-Free School Zones Act was a criminal statute that by its terms [had] nothing to do with commerce or any sort of enterprise, however broadly one might define those terms. Rehnquist observed that if we were to accept the Government s arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate. In one of his first major pronouncements from the Court, Justice Breyer authored the principal dissenting opinion in the case. Joined by Justices Stevens, Souter, and Ginsburg, Breyer took sharp issue with the majority s characterization of the issue, insisting that the statute was well within the

6 scope of the commerce power as this Court has understood that power over the past halfcentury. Breyer cited numerous studies in support of his contention that Congress had a rational basis for concluding that gun-related violence in and near schools affected commerce. Moreover, argued Breyer, the courts must give Congress a degree of leeway in determining the existence of a significant factual connection between the regulated activity and interstate commerce-both because the Constitution delegates the commerce power directly to Congress and because the determination requires an empirical judgment of a kind that a legislature is more likely than a court to make with accuracy... In a concurring opinion, Justice Thomas commented that at oral argument, the government s lawyer was asked whether there are any limits to what Congress may regulate under the Commerce Clause. Thomas noted that the government was at a loss for words. In taking Justice Breyer s dissent to task, Thomas further observed that the principal dissent insists that there are limits, but it cannot even muster one example. Gonzales v. Raich (2004). The case involved two women who used marijuana for medical reasons based on the recommendation of their doctor as authorized by California s Compassionate Use Act of Under the federal Controlled Substances Act (CSA), the possession or use of marijuana is a crime and there is no exception for medicinal use. When agents of the federal Drug Enforcement Administration learned that one of the women was cultivating marijuana in her home, they obtained a search warrant and seized and destroyed the plants. Subsequently, the women brought suit in federal court, claiming that Congress had no authority under the Commerce Clause to prohibit the possession and use of marijuana that is not intended for interstate distribution. Although the District Court rejected the claim, the U.S. Court of Appeals for the Ninth Circuit reversed on the basis of Lopez and Morrison. The Supreme Court reversed the Ninth Circuit, however, holding that Congress may criminalize the possession and medicinal use of marijuana. Writing for the Court, Justice Stevens stressed the commercial aspects of the marijuana prohibition. In a dissenting opinion joined by Chief Justice Rehnquist and Associate Justice Thomas, Justice O Connor suggested that the Court had backtracked from the commitment to principles of federalism expressed in decisions like Lopez and Morrison. Gonzales v. Raich suggests that despite the decisions in Lopez and Morrison, Congress retains broad authority under the Commerce Clause to deal with social problems of national scope. United States v. Butler (1936). Under the Agricultural Adjustment Act of 1933, proceeds from the processing tax were used to pay farmers in exchange for their promises to reduce crop acreage. Thus, the scheme of regulation at issue embodied both taxing and spending features and rested squarely on Article I, Section 8, Clause I as its constitutional source. Justice Roberts, writing one of his most influential majority opinions, found the act objectionable primarily because both its taxing and spending aspects sought to regulate agricultural production, an area then regarded as reserved to the states by the Tenth Amendment. Steward Machine Company v. Davis (1937). In this case, the Supreme Court upheld the unemployment compensation features of the Social Security Act of Justice

7 Cardozo s majority opinion recognized extensive congressional power to tax and spend, based on an interpretation of the General Welfare Clause as a source of plenary power. Cardozo asserted: The subject matter of taxation open to the power of the Congress is as comprehensive as that open to the power of the states... After citing statistics on the high rate of unemployment between 1929 and 1936, he observed: It is too late today for the argument to be heard with tolerance that in a crisis so extreme [as the Great Depression] the use of the money of the nation to relieve the unemployed and their dependents is a use for any purpose narrower than the promotion of the general welfare. South Dakota v. Dole (1987). In 1984 Congress adopted an act directing the Secretary of Transportation to withhold federal highway funds from states whose drinking age was lower than twenty-one years. South Dakota brought suit, attacking the right of the federal government to impose this condition on the receipt of federal funds. The Supreme Court rejected the state s challenge, saying that the condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended-safe interstate travel. In a dissenting opinion reminiscent of United States v. Butler, Justice Sandra Day O Connor said: If the Spending Power is to be limited only by Congress notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives power to the Congress to tear down the barriers, to invade the states jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed. This, of course,... was not the Framers plan... South Carolina v. Katzenbach (1966). In a civil action originating in the U.S. Supreme Court, the state of South Carolina challenged the constitutionality of the Voting Rights Act of The Court, in an opinion by Chief Justice Warren, rejected this challenge, concluding that Congress had established an ample factual basis for the legislation and that the provisions in question are a valid means for carrying out the commands of the Fifteenth Amendment. Warren stated that the basic test to be applied in a case involving Section 2 of the Fifteenth Amendment [the enforcement section] is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the states. Warren was relying specifically on Chief Justice Marshall s formulation of implied powers in McCulloch v. Maryland. The Voting Rights Act met this basic standard of rationality and was thus deemed an appropriate mode for enforcing the Fifteenth Amendment. City of Boerne v. Flores (1997). Here the court declared unconstitutional the Religious Freedom Restoration Act of In effect, the Act required courts to interpret the Free Exercise Clause of the First Amendment to provide more protection to religious liberty than the Supreme Court has recognized in recent decisions. Writing for the Court, Justice Kennedy observed that Congress lacks authority to enact its own interpretations of the Constitution that run counter to those of the Court. QUESTIONS FOR THOUGHT AND DISCUSSION:

8 1. Since adoption of the Seventeenth Amendment in 1913, members of both houses of Congress have been elected directly by the people. In view of this change from the original design of the Framers, does it still make sense to maintain a bicameral Congress? 2. Given the continuing concern over divided party government and the resulting gridlock in Washington, does the Madisonian system of separation of powers still make sense, or would a parliamentary model be more successful in the United States? 3. Under the doctrine of implied powers, is there any field in which Congress may not legislate? 4. Was Woodrow Wilson correct a century ago in observing that the informing function of Congress is more important than its lawmaking function? If so, would this observation be accurate today? 5. Has the Supreme Court imposed adequate constitutional safeguards against congressional abuse of the power to investigate? 6. Is there any form of economic activity that does not have a bearing on interstate commerce and is therefore beyond the reach of congressional legislation under the Commerce Clause? 7. Did the much publicized Lopez decision of 1995 represent a radical rethinking of the Supreme Court s Commerce Clause jurisprudence or was the decision merely an aberration largely confined to its facts? 8. Should Congress be permitted to use its taxing and spending power to coerce the states to make policy decisions that are traditionally matters of exclusive state control? 9. To what extent, if at all, does the Supreme Court s decision in City of Boerne v. Flores (1997) contradict its earlier decision in Katzenbach v. Morgan (1966) regarding the enforcement power of Congress under Section 5 of the 14 th Amendment? 10. Why did Congress rely principally on the Commerce Clause rather than the 14 th Amendment for its authority to enact Title II of the Civil Rights Act of 1964 banning racial discrimination by places of public accommodation? 11. Consider the Supreme Court s decision in U.S. Term Limits, Inc. v. Thornton (1995). Which opinion do you believe is correct, Justice Stevens majority opinion or Justice Thomas dissenting opinion? Justify your answer.

9 12. Consider the Patient Protection and Affordable Care Act of 2010, which brought the federal government into the regulation of the health care industry. The controversial legislation included a provision mandating that uninsured individuals obtain coverage and imposing fines on those who failed to do so. This legislation has been challenged on various constitutional grounds, including commerce, in Florida et al. v. Sebelius. Does Congress have the constitutional authority to require citizens to obtain healthcare coverage and impose fines for failure to do so under the enumerated power to regulate interstate commerce? Justify your answer. MULTIPLE CHOICE QUESTIONS: b a a d c 1. The first three articles of the Constitution are known as the articles. a. regulatory b. distributive c. federalist d. legislative 2. The Seventeenth Amendment, ratified in 1913, instituted. a. direct popular election of U.S. Senators b. the prohibition of alcoholic beverages c. the federal income tax d. none of the above 3. Under Article I of the Constitution, members of the House of Representatives must be at least years of age; members of the Senate must be at least years old. a. 25; 30 b. 30; 35 c. 35; 40 d. 40; Article I, Section 8 authorizes Congress to. a. lay and collect taxes b. fix standards of weights and measures c. regulate commerce among the states d. all of the above 5. The theory of powers originated with Alexander Hamilton, an advocate of strong centralized government. a. enumerated b. reserved c. implied d. concurrent

10 b c a d d a c 6. The doctrine of implied powers was established by the Supreme Court in the landmark case of. a. Marbury v. Madison (1803) b. McCulloch v. Maryland (1819) c. Gibbons v. Ogden (1824) d. Kilbourn v. Thompson (1881) 7. In Hammer v. Dagenhart (1918), the Supreme Court invalidated a federal statute imposing restrictions on the use of. a. marijuana b. oleomargarine c. child labor d. railroad tracks 8. In Gibbons v. Ogden (1824), the Supreme Court recognized a broad sphere of Congressional action under the and, at the same time, placed restrictions on state grants of commercial monopoly. a. Commerce Clause b. Necessary and Proper Clause c. Full Faith and Credit Clause d. General Welfare Clause 9. The Supreme Court first recognized the power of Congress to conduct investigations in. a. McCulloch v. Maryland (1819) b. Gibbons v. Ogden (1924) c. Fletcher v. Peck (1810) d. Kilbourn v. Thompson (1881) 10. The text of the Constitution distinguishes between direct and indirect, but leaves those vague categories largely undefined. a. democracy b. representation c. commerce d. taxes 11. In U.S. v. Darby (1941) the Supreme Court upheld the. a. Fair Labor Standards Act of 1938 b. Full Faith and Credit Act of 1940 c. the Internal Security Act of 1940 d. the Social Security Act of In the 1976 case of, the Supreme Court appeared to resurrect the Tenth Amendment as it struck down provisions of the 1974

11 amendments to the Fair Labor Standards Act extending the minimum-wage to state and local government employees. a. Gregg v. Georgia b. Buckley v. Valeo c. National League of Cities v. Usery d. U.S. v. E.C. Knight Co. b d c b d a 13. The Constitution requires that indirect taxes must be. a. reasonable, fair and just b. uniform throughout the United States c. based solely on rents and royalties d. subject to judicial review 14. The doctrine of has historically imposed some limits on intergovernmental taxation. a. implied consent b. dual sovereignty c. indirect recovery d. reciprocal immunity 15. Section 5 of the Fourteenth Amendment granted Congress authority to legislate in the field of. a. eminent domain b. criminal law c. civil rights d. international relations 16. Which of the following constitutional decisions was subsequently overruled by the Supreme Court? a. Wickard v. Filburn b. Hammer v. Dagenhart c. NLRB v. Jones and Laughlin Steel Corp. d. United States v. Darby Lumber Company 17. The Commerce Clause of the Federal Constitution is. a. an exclusive grant of power to the national government b. an open-ended grant of authority to the states c. currently interpreted as a major limitation on the power of Congress to regulate the economy d. none of the above 18. Chief Justice John Marshall contributed significantly to the. a. expansion of constitutional power at the national level b. narrowing of constitutional power at the national level c. expansion of constitutional power exercised by the states

12 d. application of the Bill of Rights to the states c b c d a d c 19. Which of the following is an example of an implied power of Congress? a. the regulation of interstate commerce b. the appropriation of funds c. the conducting of investigations d. declaring war 20. According to the most recent Supreme Court decision on the subject, federal minimum wage requirements. a. do not apply to most state employees b. apply to most state employees c. apply to women only d. do not apply to persons above the age of twenty-one 21. The distinction that the Supreme Court made in the E. C. Knight case between commerce and manufacturing: a. remains in effect today b. was previously endorsed by Chief Justice Marshall c. was rejected in the Darby case d. was repudiated by a five-four majority in the Dagenhart case 22. In upholding the Social Security Act of 1935, the Supreme Court accorded broad scope to Congress. a. power to declare war b. power to investigate c. borrowing power d. taxing and spending power 23. By comparison with the Court of the mid-1930 s, the Supreme Court of today is. a. less likely to invalidate a federal tax designed chiefly as a regulatory measure b. more likely to invalidate a federal tax designed chiefly as a regulatory measure c. less likely to recognize broad national legislative power d. more likely to strike down state economic regulations 24. Until 1937 the Supreme Court often frustrated attempts by Congress to exercise police powers. The Court achieved this result by. a. narrowly interpreting the Commerce Clause b. following the doctrine of dual federalism c. distinguishing between manufacturing and distribution of products d. all of the above 25. The spending power of Congress is grounded in. a. the Commerce Clause

13 b. the Supremacy Clause c. the General Welfare Clause d. the Necessary and Proper Clause a 26. Article of the Constitution specifies the qualifications for members of the House of Representatives and the Senate. a. I b. II c. III d. IV b. 27. The Clause provides that members of Congress shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. a. Necessary and Proper b. Speech and Debate c. Elastic d. none of the above c b a 28. The Supreme Court upheld Congress s power to enforce a subpoena in, a case stemming from a Senate investigation into the Teapot Dome scandal during the administration of President Warren G. Harding. a. Watkins v. United States (1957) b. Barenblatt v. United States (1959) c. McGrain v. Daugherty (1927) d. none of the above 29. The stream of commerce doctrine was first articulated by Justice in Swift and Company v. United States (1905). a. Louis Brandeis b. Oliver Wendell Holmes c. William Rehnquist d. Sandra Day O Connor 30. Broad environmental legislation passed by Congress under the power to regulate interstate commerce has been received by the Supreme Court. a. favorably b. unfavorably c. neutral d. Congress doesn t regulate the environment

14 c b c a d b 31. In, the Supreme Court upheld the unemployment compensation features of the Social Security Act of 1935 under the General Welfare Clause as a source of plenary power. a. United States v. Butler (1936) b. Garber v. United States (1976) c. Steward Machine Company v. David (1937) d. none of the above 32. The Religious Freedom Restoration Act of 1993, enacted as a response to Employment Division v. Smith (1990), was by the Supreme Court in City of Boerne v. Flores (1997). a. upheld b. struck down c. not grated certiorari d. none of the above 33. The authorizes the attorney general to suspend voting tests and assign federal voting registrars and poll watchers to any state or political subdivision in which fewer than 50 percent of the voting age population was registered. a. Civil Rights Act of 1964 b. Civil Rights Act of 1866 c. Voting Rights Act of 1965 d. none of the above 34. In, the Supreme Court upheld a provision of the Voting Rights Act of 1965 that provided no person completing the sixth grade in an accredited non-english-language Puerto Rican school can be denied the right to vote through inability to read or write English. a. Katzenbach v. Morgan (1966) b. South Carolina v. Katzenbach (1966) c. Lassiter v. Northampton County Board of Elections (1959) d. Jones v. Alfred H. Mayer Company (1968) 35. The Supreme Court in struck down a federal statutory provision allowing victims of gender-motivated violence to sue their victimizers in federal court. a. United States v. Lopez (1995) b. Gonzales v. Raich (2005) c. South Dakota v. Dole (1987) d. United States v. Morrison (2000) 36. In Bailey v. Drexel Furniture Company (1922), the Court held Congress could not regulate through its taxing power because this area is properly within the scope of state authority.

15 a. agriculture b. child labor c. maximum working hours for all employees d. household income b c d 37. Congress shall have Power... to pay the Debts and provide for the common Defence and general Welfare of the United States is known as Congress power. a. taxing b. spending c. subpoena d. none of the above 38. Article authorizes Congress to define the jurisdiction of the lower federal courts and to regulate the appellate jurisdiction of the Supreme Court. a. I b. II c. III d. IV 39. The established the Interstate Commerce Commission, which granted this independent agency with limited authority to regulate railroads engaged in commerce among the states. a. Sherman Antitrust Act b. National Industrial Recovery Act c. Wagner Act d. Interstate Commerce Act b 40. In United States v. Comstock (2010) the Supreme Court upheld congressional legislation that permits a federal district court to order the continued confinement of sexually violent offenders who have completed their prison sentences as a valid exercise of Congress powers under the necessary and proper clause. a. enumerated b. implied c. concurrent d. none of the above ESSAY QUESTIONS: 1. Explain the origin of, evaluate the justification for, and trace the development of the doctrine of implied powers. Be sure to cite particular Court decisions in your essay. 2. Discuss the origin of, constitutional justification for, and limits on Congress power to investigate. Be sure to cite particular Court decisions in your essay.

16 3. Compare and contrast the Supreme Court's decisions in Watkins v. United States and Barenblatt v. United States. Are the facts and issues in these cases sufficiently different to account for their divergent outcomes? 4. Discuss the evolution of the Supreme Court's Commerce Clause jurisprudence from Gibbons v. Ogden through the constitutional revolution of Why did Congress find it necessary to rely on the Commerce Clause in enacting Title II of the Civil Rights Act of 1964? Discuss the constitutional challenges to this legislation that came to the Supreme Court in Discuss the significance or importance of the Supreme Court s decision in McCulloch v. Maryland? 7. Discuss the Rehnquist Court s restriction of congressional powers under the Commerce Clause. Be sure to cite particular Court decisions in your essay. 8. How have the Taxing and Spending Clauses been used by Congress as a means of regulating the States? Be sure to cite particular Court decisions in your essay. HYPOTHETICAL PROBLEM FOR CLASSROOM DISCUSSION OR ESSAY EXAMINATION: Responding to widespread concern about the problem of illiteracy in the United States, Congress passed and the President signed the Basic Reading Comprehension Act. This law provided that no person residing in the United States would be issued a license to drive an automobile unless he or she had passed a standardized reading examination prepared by reading specialists employed by the U.S. Department of Education. The examinations were to be administered by the states, and the states were not explicitly required to participate in the program established by the Act. If a state chose not to participate, however, the amount of federal funds for highway construction regularly allocated to that state would be cut by twenty per cent. Egbert Farquar, a third-grade dropout from Enigma, Georgia, was denied a license after taking and failing the required reading examination four times. The state of Georgia, which had reluctantly decided to participate in the literacy program, joined Farquar in a law suit against the U.S. Department of Education challenging the constitutionality of the Basic Reading Comprehension Act. Identify and analyze the principal constitutional arguments for and against this legislation. INTRODUCTION OF TOPIC IN LECTURE: Introducing students to the powers of Congress: The powers of Congress are rooted in the Constitution. However, many students have probably never seen the Constitution. There will be some students that have seen the historical document on display in Washington, D.C. However, many students will have

17 only seen the Constitution reprinted in a textbook, as in this textbook for easy reference. Therefore, to make a class discussion of congressional powers more interactive, the instructor could use the following website to display the document to the students in the classroom: The link to this website is provided by the House of Representatives website under the educational resources section. There are three different documents that can be viewed, which include the Declaration of Independence, the Constitution of the United States, and the Bill of Rights. By clicking on the Constitution of the United States, you can view the text of the Constitution, which can be enlarged by clicking on the document. By clicking the download high-resolution images button, you can download a better quality image of each page to the Constitution. Each page can then be enlarged for better viewing. As the instructor goes through each section of the Constitution detailing the specific powers granted to Congress, the image of the Constitution could be a guide to the students. The same can be done with the Bill of Rights when introducing the topic of civil liberties in Volume II of the textbook. QUESTIONS FOR WEBSITE: 1. Discuss the various enumerated powers of Congress. Be sure to include the constitutional provisions for each power in your answer. Sample Answer: The enumerated powers of Congress are found in Article I and in other provisions scattered throughout the Constitution. For example, Article I, Section 2 grants the House of Representatives the power to return articles of impeachment, and Section 3 gives the Senate the power to try impeachments and remove individuals from public office. Most of the enumerated powers of Congress are located in Article I, Section 8, which consists of seventeen brief paragraphs enumerating specific powers followed by a general clause permitting Congress to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States. The powers enumerated in Article I, Section 8, authorize Congress to lay and collect taxes; borrow money; regulate commerce among the states; control immigration and naturalization; regulate bankruptcy; coin money; fix standards of weights and measures; establish post offices and post roads; grant patents and copyrights; establish tribunals inferior to the Supreme Court ; declare war; raise and support an army and a navy; regulate the militia when called into service; and perform other more restricted functions. Although Congress is empowered to provide for the common Defence and general Welfare of the United States in Art I, Sec 8, there is no explicit grant of police

18 power to Congress. The power to make any and all laws deemed necessary for the protection of the public health, safety, welfare, and morals is thus reserved to the states under the Tenth Amendment. Yet Congress in fact exercises the substantial equivalent of police power by linking laws to the specific powers contained in Section 8. For example, Congress is not empowered to prohibit prostitution per se, but the Supreme Court has held that it may make it a crime to transport persons across state lines for immoral purposes by drawing on its broad power to regulate commerce among the states under Hoke v. United States (1913). Article I, Section 9 authorized Congress to abolish the importation of slaves into the United States, but only after 1808, in deference to the slave-trading states of the Deep South. Section 9 also permits Congress to suspend the writ of habeas corpus in cases of rebellion or national emergency. Article II confers on the Senate the power to participate in the treaty making process and to approve or reject presidential appointments of ambassadors, federal judges, and all other Officers of the United States whose Appointments are not herein otherwise provided for (Article II, Section 2, clause 2). Article III authorizes Congress to define the jurisdiction of the lower federal courts and to regulate the appellate jurisdiction of the Supreme Court. Article IV empowers Congress to implement uniform procedures under the clause providing that [f]ull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State (Article IV, Section 1). Section 3 of this article authorizes Congress to admit new states to the Union, provided that it respects the territorial integrity of existing states. Section 3 also confers on Congress the power to regulate and dispose of the Territory or other Property belonging to the United States. Article V grants Congress authority to propose constitutional amendments and specifies their mode of ratification that is, by state legislatures or conventions. It is significant that neither the courts nor the executive branch plays a role in proposing constitutional amendments; this important function is vested solely in the Congress. Several constitutional amendments confer additional powers on Congress. The Sixteenth Amendment permits Congress to lay and collect taxes on incomes from whatever source derived, without apportionment among the states. A number of constitutional amendments endow Congress with the power to legislate in support of civil rights and liberties. For example, the Civil War Amendments Thirteen, Fourteen, and Fifteenth authorize Congress to enforce civil rights through appropriate legislation. These rights include freedom from slavery and involuntary servitude (Amendment Thirteen); the enjoyment of the privileges and immunities of national citizenship (Amendment Fourteen); guarantees against state deprivation or denial of due process or equal protection of the laws (Amendment Fourteen); and prohibition of governmental interference with the right to vote on account of race, color, or previous condition of servitude (Amendment Fifteen, Section 1). The Nineteenth Amendment removes sex as a qualification for voting, and the Twenty-sixth Amendment lowers the voting age in state and federal elections to 18. Both amendments contain clauses authorizing Congress to enforce their terms by appropriate legislation. The Twenty-third and Twenty-fourth Amendments, which, respectively, give the District of Columbia representation in the Electoral College and abolish poll taxes in federal elections, are likewise subject to congressional enforcement.

19 2. Briefly discuss Congress s power to investigate? Are there any limitations to this power? Sample Answer: Article I does not explicitly refer to the power of Congress to conduct investigations. Nevertheless, Congress has conducted hundreds of investigations over the years and called thousands of witnesses to testify. Sometimes these investigations have been great public events, such as the Watergate hearings of 1973 and 1974, which contributed to the demise of the Nixon presidency, and the use of steroids in professional sports. More often, they have involved more mundane questions of public policy, such as consumer product safety or the regulation of the airline industry. One of the important functions of legislative investigations is oversight where Congress serves as a watchdog over the actions of executive and regulatory agencies. This function has become increasingly important in the modern era, because Congress has created so many agencies and delegated to them broad powers within their areas of expertise. In a democracy, it is vital that the people s elected representatives stay informed on the activities of a powerful, unelected government bureaucracy. There are several theories as to the source of Congress s power to investigate. The first is that Congress inherited this power from the English Parliament at the time of the Declaration of Independence in This theory views the power to investigate as inherent in any duly constituted legislature. Under this theory, Congress s power to investigate does not depend on any grant of authority in the Constitution. A second theory is that congressional investigations may be justified under the doctrine of implied powers. According to this argument, the power to investigate is seen as both necessary and proper to the exercise of Congress s most basic function, which is crafting legislation. Investigation is a necessary means of obtaining information about the issues and subjects around which Congress is considering legislation. Finally, Congress s power to conduct investigations may be justified under a theory of an evolving system of checks and balances. Under this theory, the system of checks and balances enumerated by the Framers was incomplete in that it failed to grant Congress the power to investigate, since investigation is an obvious means whereby Congress can check the other branches. Thus, Congress was justified in asserting the power to investigate for the same reason that the Supreme Court was justified in assuming the power to rule on the constitutionality of legislation. The Supreme Court first addressed the constitutionality of the investigative power in Kilbourn v. Thompson (1881). The Kilbourn case involved a House of Representatives investigation into the collapse of the Jay Cooke banking firm, with which the United States had deposited funds. In the course of the investigation, Hallet Kilbourn was called to testify and bring with him documents pertaining to his real estate pool and its dealings with the Jay Cooke Company. Kilbourn refused both to testify and produce the records. He was cited for contempt of Congress and was jailed for forty-five days. Upon his release from custody, Kilbourn sued John G. Thompson, the House sergeant-at-arms, for false imprisonment. The Supreme Court held that, although Congress possessed the power to investigate, the power must be exercised in furtherance of the legislative function. Justice Samuel F. Miller wrote for a unanimous bench that Congress could not

20 employ its power of investigation to accomplish functions that were reserved to the other branches of government. In this case, the House had no intent to legislate; its inquiry into the Jay Cooke company was entirely investigatory in nature. Thus, Kilbourn s contempt citation and imprisonment were invalid. The Kilbourn decision established the basic policy of the Supreme Court toward legislative investigations: The power to investigate is a necessary auxiliary of the legislative function. Yet the implied power to investigate is not unlimited. It must be exercised only in relation to potential legislation. Of course, today, there are few areas in which Congress may not potentially legislate; thus, there are few areas off limits to congressional investigation. Still, an investigation purely for its own sake is subject to judicial challenge. 3. Discuss the importance of the Tenth Amendment in relation to Congress s power to regulate interstate commerce in the modern era. Be sure to cite Supreme Court decisions to support your answer. Sample Answer: The Tenth Amendment reserves to the states those powers not delegated to the national government. In the evolution of the Supreme Court s commerce jurisprudence, the Tenth Amendment has been used as a limitation on Congress s power to regulate commerce. However, with the decision in United States v. Darby, the Tenth Amendment for all intents and purposes vanished as a significant restraint on the commerce power. In Darby, the Court unanimously upheld the Fair Labor Standards Act of The Darby decision explicitly overruled Hammer v. Dagenhart, rejecting the former ruling s narrow interpretation of the Commerce Clause, as well as its reliance on the Tenth Amendment. In the 1976 case of National League of Cities v. Usery, the Court appeared to resurrect the Tenth Amendment as it struck down provisions of the 1974 amendments to the Fair Labor Standards Act extending minimum wage coverage to most state and local government employees. Writing for the Court, Justice Rehnquist concluded that the national commerce power must yield to the Tenth Amendment when the former infringes on traditional aspects of state sovereignty. In a sharp dissent, Justice Brennan assailed the Usery ruling as an irresponsible departure from modern views regarding the national commerce power and federal state relations. A number of legal scholars endorsed this view, but others praised the decision as a welcome reassertion of the principle of federalism. Controversy over Usery continued into the 1980s, until the decision was overruled in Garcia v. San Antonio Metropolitan Transit Authority. Again the court was divided 5 to 4. Justice Harry A. Blackmun, who had concurred in the Usery ruling, switched sides and delivered the majority opinion in Garcia. Supported by Justices Brennan, White, Marshall, and Stevens, he concluded that the attempt to draw the boundaries of state regulatory immunity in terms of traditional governmental function is not only unworkable but is inconsistent with established principles of federalism. In a lengthy dissent, Justice Lewis Powell, joined by Chief Justice Burger and Justices Rehnquist and O Connor, deplored what he characterized as the Court s abrupt departure from precedent and its reduction of the Tenth Amendment to meaningless rhetoric when Congress acts