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The specific power of congress given by the united states constitution

The Reach of Congressional Power: How far do the powers of Congress under the various grants extend? Introduction The United States is a government of enumerated powers. Congress, and the other two branches of the federal government, can only exercise those powers given in the Constitution.

The powers of Congress are enumerated in several places in the Constitution. The most important listing of congressional powers appears in Article I, Section 8 see left which identifies in seventeen paragraphs many important powers of Congress.

In this section, we consider how several of the enumerated powers of Congress under the original Constitution have been interpreted.

  1. The United States contended that laws authorizing medical marijuana in California and 10 other states interfere with federal drug enforcement.
  2. Maryland 1819 , ruling that the federal government had the right to establish a national bank under the power delegated to Congress to borrow money and control commerce.
  3. Christy Brzonkala, the former student at VPI whose efforts to receive compensation for an alleged rape were ended by the Supreme Court in U. The Formal or "Categorical" Test.
  4. No Bill of Attainder or ex post facto Law shall be passed.

Commerce, wrote Marshall, is more than just the buying and selling of objects--it includes all branches of commercial intercourse between states, including navigation. The next series of cases illustrate two divergent approaches to analyzing whether an activity is reachable under the commerce power. Knight the Court concluded that the Congress lacked the power to reach a monopoly in the "manufacture" of refined sugar, but could reach a "monopoly of commerce" involving sugar.

The Knight case illustrates the formal or "categorical" approach to analyzing the reach of the commerce power.

6a. The Powers of Congress

The formal approach focuses on such questions as whether the regulated activitity is "in" or "outside" the stream of commerce, whether the activity is "local" or "interstate," or whether the effects of the activity on interstate commerce are "direct" or "indirect.

In Houston, the Court upheld a federal agency's regulation of freight rates on travel wholly within Texas because the freight transporation within Texas was found to be substantially affecting interstate commerce.

Hammer vs Dagenhart 1918 considered the constitutionality of the Child Labor Act, which banned items produced by child labor from interstate commerce. Adopting the formal approach, the Court saw the Act as unconstitutional attempt to regulate a purely local matter, workplace conditions.

Powers & Procedures

The harm of child labor, the Court concluded, had nothing to do with interstate commerce and thus fell outside the reach of congressional power. Two girls working in Loudon Hosiery Mills Tennessee in 1910. The year before, in a case called Carter vs Carter Coal Co. Enraged by the Court's decision in Carter and other cases, President Roosevelt proposed "packing the Court" with sympathetic justices by increasing its size from nine to fifteen.

Using a "substantial effects" test, the Court upheld the Fair Labor Standards Act--an important piece of legislation that effectively set national minimum wage and maximum hour laws by prohibiting the interstate shipment of goods manufactured in violation of the federal standards. Once having established that congressional exercises of power were valid if shown to regulate activities "substantially affecting" interstate commerce, the Court proceeded to open up more opportunities for exercise of the commerce power by holding that an activity only trivially affecting interstate commerce might nonetheless by regulated if all of the regulated activities of various individuals--taken cumulatively--had substantial interstate effects.

The Court relied on Wickard in the 2005 case of Gonzales v Raich, upholding the power of Congress to authorized seizure of doctor-prescribed marijuana allowed under the laws of California and other states. The Court in Gonzales noted that local use of medical marijuana had a cumulative effect on the black market for marijuana.

In 1971, legislation making loansharking a federal crime was upheld on a similar basis Perez vs U.

The Powers of Congress

The Heart of Atlanta, McClung, and Perez cases led the specific power of congress given by the united states constitution speculation that perhaps any activity might be regulated under a loose application of the cumulative effects test.

Ollie Moreton Rolleston Jr. It was unclear whether the government lost because the Congress failed to make adequate factual findings about the impact of school gun violence on interstate commerce or whether the Court was convinced that the interstate impact of possessing guns near schools had only an insignificant effect on interstate commerce.

The defendant players and university argued that the Violence Against Women Act, which allowed victims of gender- motivated violence to bring federal civil suits for damages, was outside of the scope of the commerce power. The Court agreed with the defendants, even though in this case Congress had made specific findings that gender-motivated violence deterred interstate travel, diminished national productivity, and increased medical costs.

The Court concluded that upholding the Violence Against Women Act would open the door to a federalization of virtually all serious crime--as well as family law and other areas of traditional state regulation. The Court said that Congress must distinguish between "what is truly national and what is truly local"--and that its power under the Commerce Clause reaches only the former. In a concurring opinion, Justice Thomas went even further, urging abandonment of "the substantial effects" test.

Christy Brzonkala, the former student at VPI whose efforts to receive compensation for an alleged rape were ended by the Supreme Court in U. In the closely watched case of National Federation of Independent Business v Sebelius 2012the Court considered whether the Affordable Care Act of 2010, the Obama Administration's signature piece of legislation was constitutional.

The Court, on a 5 to 4 vote, found that the individual mandate provision of the Act, which required all persons to buy health insurance or pay a penalty, was outside of Congress's powers under the Commerce Clause.

The individual mandate, also on a 5 to 4 vote, survived, however, as a valid exercise of Congress's taxing power. Chief Justice Roberts concluded that the Commerce Clause gave Congress no power to regulate inactivity here, the decision of an individual not to buy health insurance. To allow such a power, Roberts argued, would give almost limitless power to Congress because there are "an infinite number" of things people do not do everyday.

Congress might even, Roberts wrote, order people to buy broccoli.

Specific powers

Can the federal government make you buy broccoli? Critics of the Affordable Care Act "Obamacare" argued that "the individual mandate" the provision requiring individuals to purchase health insurance or pay a penalty was outside of Congress's power to regulate commerce.

The rallying cry of critics became, "If Congress can make you buy health insurance, they can make you buy broccoli! A few references to the leafy green vegetable: Indeed, the Government's logic would justify a mandatory purchase to solve almost any problem to "identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional" under its theory of the commerce power.

To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to purchase insurance.

  • The Senate shall have the sole Power to try all Impeachments;
  • No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office;
  • The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it;
  • Rule by kings and emperors was an old style of government, and the legislature in many ways represented the new;
  • In addition, Congress can admit new states to the Union Article IV, Section 3 , propose amendments to the Constitution Article V , collect federal income taxes Sixteenth Amendment , and enforce protection and extension of civil rights Thirteenth, Fifteenth, Nineteenth, Twenty-third, Twenty-fourth, and Twenty-sixth amendments;
  • The most important listing of congressional powers appears in Article I, Section 8 see left which identifies in seventeen paragraphs many important powers of Congress.

Those increased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. Congress addressed the insurance problem by ordering everyone to buy insurance.

Under the Government's theory, Congress could address the diet problem by ordering everyone to buy vegetables. According to the Government, upholding the individual mandate would not justify mandatory purchases of items such as cars or broccoli because, as the Government puts it, "[h]ealth insurance is not purchased for its own sake like a car or broccoli; it is a means of financing health-care consumption and covering universal risks.

They are purchased to cover the need for transportation and food. Chief Justice Roberts As an example of the type of regulation he fears, The Chief Justice cites a Government mandate to purchase green vegetables. One could call this concern "the broccoli horrible.

  • Censure Article I, Section 5, of the U;
  • If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law;
  • They 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;
  • Founders controlled power not only by checks from the other branches, but by creating a bicameral, or two house, Congress — the Senate and the House of Representatives;
  • Enraged by the Court's decision in Carter and other cases, President Roosevelt proposed "packing the Court" with sympathetic justices by increasing its size from nine to fifteen.

Consider the chain of inferences the Court would have to accept to conclude that a vegetable-purchase mandate was likely to have a substantial effect on the health-care costs borne by lithe Americans. The Court would have to believe that individuals forced to buy vegetables would then eat them instead of throwing or giving them awaywould prepare the vegetables in a healthy way steamed or raw, not deep-friedwould cut back on unhealthy foods, and would not allow other factors such as lack of exercise or little sleep to trump the improved diet.

Such "pil[ing of] inference upon inference" is just what the Court refused to do in Lopez and Morrison. When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically, would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables.

  1. The Court concluded that upholding the Violence Against Women Act would open the door to a federalization of virtually all serious crime--as well as family law and other areas of traditional state regulation. Constitution provides that "Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.
  2. Power to regulate commerce. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.
  3. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law.

Yet no one would offer the "hypothetical and unreal possibilit[y]" of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate.

Each basic type of test has its variations and refinements, but they reflect different core approaches: The empirical test is factual in nature, looking at the effects of the regulated activity and the degree to which they impact interstate commerce. In one formulation, the Court looks to see whether the regulated activity has "a substantial economic effect" on interstate commerce. In various applications of this empirical test, the Court has looked at the cumulative impact of regulated private actions to see whether, taken collectively, the effects are substantial.

The Formal or "Categorical" Test: This approach applies labels to a regulated activity and, depending on the label, the regulated activity is determined to either be reachable or unreachable under Congress's commerce power. For example, the Court might ask whether the activity is "in" or "outside" the stream of commerce, or whether the regulated activity is a "local" or an "interstate" activity, or whether the economic effect on interstate commerce is "direct" or "indirect," or whether what is being regulated is economic "activity" or "inactivity.

Angel Raich, allowed to use marijuana for medical purposes under California's Compassionate Use Act, sued Attorney General Gonzales to prevent further federal raids on her home and garden. The case raised the issue of whether federal drug laws prohibiting the private possession of marijuana preempt state laws that authorize possession and consumption for medical pruposes with a doctor's prescription. After the DEA seized doctor-prescribed marijuana from the home of a patient, Angel Raich and other patients sued.

The United States contended that laws authorizing medical marijuana in California and 10 other states interfere with federal drug enforcement. The question the Court considered was: Joining the liberals in the majority were conservatives Scalia and Kennedy, who have been skeptical of strained exercises of the Commerce Clause power in other contexts. Justices O'Connor, Rehnquist, and Thomas dissented. Power to regulate commerce: