Congressional Powers

Article I, which creates the legislative branch and Congressional powers, consumes over one-half of the United States Constitution. For this reason, anyone who wishes to understand our Constitution should read and pay close attention to Article I. The Article contains a fair amount of information about election to and organization of the legislative branch. Sprinkled throughout Article I one finds miscellaneous powers, some minor and some major. Section 8 contains a centralize specific list of enumerated powers such as the power to establish post roads and post offices, to borrow money on the credit of the United States, and so on. At the end of Section 8, the Constitution contains the important necessary and proper clause which states as follows:

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, or in any Department or Officer thereof.

The scope of the powers granted by this necessary and proper clause became the focus of considerable debate in the early years of the new United States. Jefferson contended that Congress received only those powers absolutely necessary to render the enumerate powers meaningful. Hamilton argued, on the other hand, for a broader interpretation. In McCulloch v Maryland (1819) the Court adopted Hamilton's view:

Necessary and proper means all legislative means which are appropriate to carry out the letter and spirit of the constitution.

This is a good point to remember that while the Supreme Court has final power to interpret the Constitution, that does not mean that the Supreme Court is the final arbiter of how Constitutional powers should be exercised. In a democracy, the people have an important role to play: when the people believe that Congress has overstepped its bounds, then the people may resort to the ballot box to reign in Congress. When the Court interferes with a Congressional interpretation of whether legislation is an appropriate means to carry out an enumerated power, the Court interferes with democracy. Of course, the Court has a responsibility to make sure that legislation does not violate some other Constitutional prohibition. But here we are discussing what affirmative powers have been granted Congress

We intend to focus has focussed on the following areas:

What additional powers, if any, are granted by the power to provide for the "general Welfare of the United States.
What ends may Congress achieve through the taxing power. May it raise money only, or may it regulate, discourage, encourage, and promote objects in ways not authorized by other powers.
What may the Congress do with the power "to regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes.

Provide for the General Welfare The power to provide for the general welfare is not an independent grant of power, but rather a qualification of the taxing power. In United States v Butler (1936) the Roosevelt administration defended the Agricultural Adjustment Act upon the general welfare clause. The Court wrote as follows:

The clause thought to authorize the legislation [confers] upon the congress power 'to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.....The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted....if it were adopted, the Government of the United States would be, in reality a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers....

Thus Butler tells us that the power to provide for the general welfare is not an additional power, but rather a broadening of the taxing power. Congress may tax to provide for the general welfare. Whether a tax serves the purpose of Article I, then, is primarily a Congressional question, and not a question for the Supreme Court to decide. See Helvering v Davis. (1937). The limits to the taxing power are found not in Article I, but in the bill of rights and other express limitations upon governmental powers.

Discredited Judicial Constraint on the Taxing Power The Butler decision arises from a period in which the Supreme Court distinguished between the use of the taxing power to raise revenue and to accomplish other objectives. In Butler, the taxing power was being used to regulate and discourage agricultural production. The court then believed that Congress lacked the power under the necessary and proper clause to accomplish this objective. Since the taxing power was not being used primarily to raise revenue, but rather to accomplish an objective not otherwise authorized, the Butler court struck down the tax. The Court had held that the taxing power may not constitutionally be used to encourage, discourage, or virtually prohibit activities without justification from another independent power. But by 1938, the Court had begun to head in another direction. Under the modern view, the taxation power may be used for non-revenue purposes. For example, the taxation power may be used to discourage use of marijuana. Obviously, the marijuana tax has no revenue raising purpose, since the goal of Congress is to produce no tax whatsoever.

In the panels to come, we discuss the broad commerce clause powers.