Additional Congressional Powers

1
Additional Congressional Powers

• Congress enjoys some other important powers
  besides the Commerce Clause power
• The power to tax
• The power to spend
• The power to enforce the Reconstruction
  Amendments (13th-15th Amendments)

2
Taxing power

• The Congress shall have Power To lay and collect
  Taxes. . . .
• Art. I, 8, cl. 1

3
Taxing Power

• Before 1937, the Supreme Court drew a distinction
  between revenue-raising taxes (e.g., income or
  general sales taxes) and regulatory taxes (e.g.,
  corporate tax on companies that make goods with
  child labor)
• Under Bailey (a 1922 case), the taxing power
  could be used to raise revenue but not for
  regulatory purposes
• This was an internal limit on the taxing power

4
Taxing Power

• If Congress wanted to impose a regulatory tax, it
  needed an independent power to regulate
• If Congress wanted to regulate working conditions
  in factories, it could do so through a tax only
  if it had the power to regulate the working
  conditions under the Commerce Clause or another
  clause
• For two reasons, the regulatory tax principle is
  not important
• With an expansive Commerce Clause authority,
  there are no meaningful limits on the taxing
  powerLopez doesnt change this since activities
  likely to be taxed are commercial activities with
  an interstate dimension
• Since 1937, the Supreme Court has required only a
  non-exclusive revenue raising purpose for a
  taxand the amount of revenues raised need not be
  substantial

5
Taxing Power

• What about the challenges to the individual
  mandate to purchase health care insurance under
  PPACA?
• The government claims that the individual
  mandate is an exercise of the taxing power
• Individuals will pay 2.5 percent of income (above
  the filing threshold) if they dont have
  insurance
• There also are minimum and maximum levies
• This is the functional equivalent of a 2.5
  percent income tax, with an exemption for those
  who have health care coverage

6
Taxing Power

• The courts have not questioned whether the
  individual mandate could have been passed as an
  exercise of the taxing power
• Rather they claim that Congress did not in fact
  use its taxing power
• Instead Congress explicitly invoked its Commerce
  Clause power, and failure to purchase insurance
  will generate a penalty, not a tax
• Does it matter whether Congress said it was using
  its taxing power?
• Does it matter whether Congress called the levy a
  penalty rather than a tax?
• Is there an accountability problem?

7
Spending Power

• The Congress shall have Power To lay and collect
  Taxes, Duties, Imposts and Excises, to pay the
  Debts and provide for the . . . general Welfare
  of the United States. . . .
• Art. I, 8, cl. 1
• How would you read the spending power to create a
  general police power?
• The Congress shall have Power To . . . provide
  for the . . . general Welfare of the United
  States. . . .

8
Spending Power

• The spending power has some internal limits, but
  they are not very constraining
• Must be exercised in pursuit of the general
  welfare (deferring to Congress on question
  whether a general purpose is served)
• Any conditions on the receipt of funds must be
  unambiguous (this is the most significant limit)
• Conditions on federal grants must be related to
  the federal interest in national projects or
  programs (not clear whether they need to be
  related to the purpose of the grants in any
  case, there need not be a reasonably close
  relation)
• Congress cannot coerce states into compliance
  with its conditions

9
Enforcing the Reconstruction Amendments (13-15)

• The Congress shall have power to enforce, by
  appropriate legislation, the provisions of this
  article.
• 14th Amendment, section 5

10
Enforcing the Reconstruction Amendments (13-15)

• Congress can exercise its enforcement power when
• There has been a real problem with a states
  compliance with its obligations under the
  amendment and
• The congressional legislation is well targeted at
  the states lack of compliance
• Thus, because states had a history of using
  literacy tests to restrict the right to vote,
  Congress could ban literacy tests in the Voting
  Rights Act of 1965
• But an exemption from laws of general
  applicability that restricted religious practice
  (e.g., peyote use) was struck down as applied to
  the states (the laws were not passed because of
  anti-religious sentiment)

11
10th Amendment Overview

• The 10th Amendment essentially restates the
  principle that the national government is a
  government of limited powers
• According to the Amendment, governmental powers
  not granted to the national government are
  reserved to the states
• Nevertheless, the Supreme Court has interpreted
  the 10th Amendment to limit the freedom of
  Congress to regulate state and local governments
• Congress may be able to regulate the behavior of
  private individuals, but state autonomy is
  especially threatened when Congress tries to
  regulate the behavior of state and local public
  officials
• New York v. United States and Printz set the
  current standard for 10th Amendment analysis

12
10th Amendment

• The Powers not delegated to the United States by
  the Constitution, nor prohibited by it to the
  States, are reserved to the States respectively,
  or to the people.

13
Treaty power

• The President shall have Power, by and with the
  Advice and Consent of the Senate, to make
  Treaties, provided two thirds of the Senators
  present concur. . . . Art. II, 2, cl. 2

14
Missouri v. Holland

• Federalism concerns do not apply to relations
  with other countries the way they do to domestic
  policies
• The treaty-making power is a power that is
  quintessentially a power of national governments,
  and we dont want states interfering with foreign
  relations
• Are there any limits on the treaty power?
• Treaties must deal with questions that are
  properly the subject of negotiation with a
  foreign country
• Treaties are subject to the external limits of
  the Bill of Rights (Reid v. Covert, page 333)

15
Treaty power

• But why is the treaty power limited by the Bill
  of Rights?
• This Constitution, and the Laws of the United
  States which shall be made in Pursuance thereof
  and all Treaties made, or which shall be made,
  under the Authority of the United States, shall
  be the supreme Law of the Land. . . .
• Article VI, 2 (Supremacy Clause)
• The framers wanted to preserve treaties made
  under the Articles of Confederation (page 333)

16
10th Amendment

• As weve seen with other provisions, Supreme
  Court interpretations have varied over time
• In National League of Cities, the Court
  prohibited Congress from regulating states when
  they were engaging in their traditional
  governmental functions
• In Garcia, the Court held that states should rely
  on the procedural safeguards inherent in the
  structure of the federal system rather than
  judicial intervention
• See also Baker (page 336) States must find
  their protection from congressional regulation
  through the national political process
• Then came New York v. United States

17
New York v. United States

• What was this case about?
• The case was about a rather complex effort to
  deal with the disposal of radioactive wastes
• Our economy produces a lot of low level
  radioactive waste, from things like luminous
  watch dials, smoke alarms, materials used at
  nuclear power plants, medical fluids, and
  scientific research.
• The waste needs to be disposed of at special
  sites but people generally do not want the
  disposal sites in their communityits the
  not-in-my-backyard (NIMBY) problem

18
New York v. United States

• Note on page 337 some things that foreshadow what
  we will see in the dormant commerce clause
  section of the course
• Why did the SC Governor order a 50 percent
  reduction in radioactive waste accepted at the SC
  waste disposal site rather than just limit
  importation of radioactive waste from other
  states?
• Cant discriminate based on geography
• If the SC Governor couldnt limit importation
  from other states, why was it okay for the 1985
  statute to authorize states to impose surcharges
  on waste from other states?
• Congress can override the Commerce Clauses
  restrictions on states

19
New York v. United States

• What was this case about?
• The National Governors Association fashioned a
  compromise between the few states with disposal
  sites and the states without disposal sites, and
  Congress enacted the compromise in 1985 (page
  337)
• The legislation gave states some financial
  incentives to dispose of wastes within their
  borders but also required them to take possession
  of the privately generated wastes in their state
  if they had not provided for disposal of the
  wastes by 1996

20
New York v. United States

• Why did the states need federal legislation for
  their deal?
• Article I, 10, cl.3 requires Congressional
  approval for interstate compacts
• No State shall , without the Consent of Congress,
  . . . enter into any Agreement or Compact with
  another State. . . .
• Also, they needed to avoid dormant Commerce
  Clause problems.

21
New York v. United States

• How did the statute try to regulate disposal of
  the radioactive wastes?
• States with disposal sites could impose
  surcharges on waste from other states, which
  would be returned to states that arranged for
  disposal of their own wastes
• After a series of surcharge increases, existing
  sites could deny access to wastes from states
  that were not part of a regional compact to
  dispose of wastes
• If a state was unable to provide for disposal of
  its own waste by 1996, it was to take title to
  the waste and would be obligated to take
  possession of the waste

22
New York v. United States

• On page 338, the Court began its analysis
• First, the Court observed that there are both
  external (e.g., first amendment) and internal
  limits on the Article I powers of Congress
• The Tenth Amendment reminds us that principles of
  state sovereignty impose limits on the Article I
  powers
• We can view the Tenth Amendment analysis as
  either one of internal or external limits
• The Constitution may adapt to changes in
  circumstances, but it also imposes its own
  structure that limits the powers of the national
  government

23
New York v. United States

• How may Congress interfere with state sovereignty
  (pages 338-339)?
• It may directly regulate the disposal of
  privately-generated radioactive waste
• In doing so, it may preempt state regulations for
  the disposal of radioactive waste
• It may subject states to generally applicable
  laws (i.e., if Congress adopts regulations on
  private generators of radioactive waste, it can
  impose the regulations on governmental generators
  of radioactive waste)

24
New York v. United States

• In what way may Congress not interfere with state
  sovereignty (pages 339-340)?
• Congress may not simply commandeer the
  legislative processes of the States by directly
  compelling them to enact and enforce a federal
  regulatory program.
• Congress may not require the States to govern
  according to Congress instructions.
• In other words, Congress may not force state
  legislatures to carry out its policies

25
New York v. United States

• Where does this limitation come from?
• Original intent The framers wanted to replace
  federal regulation of states under the Articles
  of Confederation with federal regulation of
  individuals under the Constitution (page 339)
• The inability of Congress to regulate individuals
  was a key defect in the Articles
• Note in Printz that Stevens read the legislative
  history differentlyin his view, the framers
  wanted to add regulation of individuals to
  regulation of states, not substitute one for the
  other (pages 348, 350)

26
New York v. United States

• If Congress cant force the states to do
  something, is it powerless with respect to
  getting the states to do things?
• Weve already seen that Congress can subject
  states to generally applicable laws (page 339)
• Congress may attach conditions to the receipt of
  funds when it exercises its spending power (page
  340)
• Congress can let the states regulate private
  activity according to national standards rather
  than having the national government regulate
  (page 340)
• There is no choice about the content of the
  regulations, but there is choice as to who
  administers the regulations. Environmental
  statutes are important examples. Its not much
  of a choice for the states

27
New York v. United States

• There are three related problems when Congress
  forces a state to impose regulations
• The invasion of state autonomythe people of the
  state lose their ability to decide whether to
  follow the national governments lead (page 340)
  (nature or structure of the US Constitution)
• The blurring of responsibility and accountability
  (who should the public thank or blame when a
  state adopts a policy required by Congress?)
  (page 340) (representation-reinforcement)
• The imposition of unfunded mandates (states
  having to assume ownership of low level
  radioactive wastes, or in Printz, local sheriffs
  having to enforce gun background checks)

28
New York v. United States

• Most of the statute is fine (pages 340-341)
• States with disposal sites may impose a surcharge
  on radioactive wastes received from other States
• Congress can authorize states to burden
  interstate commerce
• The Secretary of Energy may collect a portion of
  the surcharge and place the money in an escrow
  account
• Congress may tax interstate commerce
• States achieving a series of milestones may
  receive portions of the collected surcharges
• Congress may spend for the general welfare

29
New York v. United States

• States may restrict access to their disposal
  sites by raising fees and ultimately denying
  access to waste generated in other states (p.341)
  
• Congress can authorize states to discriminate
  against interstate commerce
• Congress is not telling the states what to do
• It is telling the states that either (a) they can
  adopt their own policies consistent with federal
  standards for the disposal of privately generated
  wastes or (b) they can let the federal government
  subject private generators of waste to the
  regulation authorizing other states to deny
  access to waste sites in the other states (slide
  26, prong 3)
• The state is not required to expend any funds by
  the regulation, nor is there a burden on the
  state as a sovereign. The burden falls on the
  private generators of waste.

30
New York v. United States

• What is the problem with the statute?
• The requirement that states take possession of
  privately generated radioactive wastes as an
  alternative to making sure that locally generated
  wastes are disposed of properly (pages 341-342)
• Why is this a problem?
• With either choice, the state would be enacting a
  federal regulatory program
• Take possession of radioactive wastes (which is
  the equivalent of granting a state subsidy to
  generators of the waste) or
• Create local disposal sites or otherwise provide
  for disposal of locally generated wastes
• Since Congress cannot require either choice
  separately, it cannot require a choice between
  the two options

31
New York v. United States

• The government argued (page 342) that even if it
  is true that Congress generally cannot tell state
  legislatures what to do, a sufficiently strong
  federal interest should permit Congress to direct
  state legislatures
• How did the Court respond?
• Where a federal interest is sufficiently strong
  to cause Congress to legislate, it must do so
  directly it may not conscript state governments
  as its agents (page 343)

32
New York v. United States

• How can the act violate state sovereignty when
  the states were willing participants in the
  passage of the legislation (page 343)?
• The state-federal balance was created for the
  benefit of individuals, not for the benefit of
  state governments, so the state governments
  cannot upset the balance
• It may be in the interests of public officials to
  change the balance so, as in this case, they can
  avoid responsibility for unpopular action.
  Congress can force the states to choose where to
  locate disposal sites the states can blame
  Congress for forcing them to choose (pages
  343-344)
• Note the dissents point (page 345) that by
  protecting NYs sovereignty, the Court infringes
  the other states sovereignty

33
New York v. United States

• Congress may impose its policies on state (or
  local) governments when
• It adopts statutes that are generally applicable
  to both private companies and state and local
  governments
• If Congress requires private businesses to pay a
  minimum wage, it also can require states to pay
  their employees a minimum wage
• It uses financial incentives to persuade state
  and local governments to regulate private
  activity in a certain way (the spending power)
• Regulating private activity, it gives states the
  choice of regulating according to federal
  standards or having the federal government
  preempt state regulation

34
Printz v. United States

• Just as Congress cannot commandeer state
  legislators, they cannot commandeer state
  executive branch officials
• Congress wanted local law enforcement officers to
  conduct background checks before someone could
  buy a gun
• The Court cited to principles of
• Tradition (compelled enlistment of state
  executive officers for the administration of
  federal programs is, until very recent years at
  least, unprecedented.)
• Constitutional structure (the federal executive
  branch, not state executive branches, is supposed
  to execute the laws, and Congress intrudes on
  state sovereignty when it tells local law
  enforcement officers how to exercise their policy
  making discretion)
• Representation-reinforcement (gun purchasers will
  blame the local law enforcement officers for the
  background checks)