Constitutional Law August 26, 2004

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Constitutional LawAugust 26, 2004

• Evolution of the Commerce Power

• Enumerated Powers
• Commerce Power Intro
• The Stream of Commerce
• Gibbons
• Evolution
• Restrictive View
• New Deal Switch
• Death of the Restrictive View
• Era of Unlimited Power

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Key Points from McCulloch

• Relevance of Banks History
• Source of Constitution
• Basic Federalism Framework
• Implied Powers Construction of N P
• Test for Implied Powers
• Principle of Federal Supremacy
• Political Process Reasoning

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Burden Export
State A
Federal
Tax
Representation
Tax
No Representation
Representation
Representation
Federal
State A
Other States
State A
Other States
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I. Enumerated Powers

• Constitutional Provisions
• Article I, section 8
• 10th Amendment
• General Points
• One Power is Enough
• States Police Power
• Federal Power and State Interests
• Interaction with Implied Powers
• Key Role of Commerce Power

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II. Commerce Power IntroA. The Stream of
Commerce
What Can Congress Regulate?
Ownership
Retail Sales
Manufacture
Raw Materials
Interstate Shipment
Wholesale Distribution
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B. Gibbons

• Background
• Commerce
• Commercial Intercourse
• Includes Navigation
• Among the States
• More Than One State
• But May Encompass Internal Activity
• Regulate
• Prescribe Rules
• Plenary

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III. EvolutionA. The Restrictive View

• Reserved Power (link)
• The idea of the police power
• As a restriction on federal power
• Affecting Commerce (E.C. Knight)
• Narrow Conception of What is Commerce
• Requirement of Direct Effects
• Prohibition of Interstate Shipment
• Not for Police Power Purposes
• Compare Hammer and Champion
• Federalism or Laissez Faire?

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B. The New Deal Switch

• The New Deal Crisis
• Great Depression and Response
• Carter Coal Schechter Poultry
• Court Packing Plan
• Expand S. Ct.
• Controversial But Moot
• Switch in Time that Saved Nine

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C. Death of the Restrictive View

• Jones Laughlin Steel (NLRA)
• Distinguished Prior Cases
• Departed from Direct Effects
• Darby (Fair Labor Standards Act)
• Overruled Hammer
• 10th Amendment as Truism
• The Darby Bootstrap
• Wickard v. Filburn
• Cumulative or Aggregate Effects
• What Cant Congress Regulate?

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D. Era of Unlimited Power

• Overlapping Powers (link)
• Rational Basis Test
• Activities Affecting Commerce
• Then Regulation is Reasonable Means
• Broad Assertions of Federal Power
• Civil Rights Cases
• United States v. Perez
• Jurisdictional Nexus Provisions

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Mutually Exclusive Powers
Police Power
Enum. Powers
If w/in the police power, then beyond the scope
of the enumerated powers.
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Overlapping Powers
Police Power
Enum. Powers
Enumerated powers can reach same subjects as
police power, which must give way.
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