The Scope of National Power I.

II. III.

Theory of enumerated federal power a. Congress may act only when there is express or implied authority to act in the Constitution. i. 10th amendment: US is a government of limited power ii. The fact of enumeration in Art. I indicates that the government has limited power b. Constitutional requirement for federal legislation i. Is the legislation within at least one of the enumerated powers, i.e. A. I SS8?
ii. Does the statute violate some constitutional constraint, in particular an individual right, i.e. Amend. 1-10, A. I
SS9?
State power a. Only the state has police power that allows the state to adopt any law not prohibited by the constitution Reasons for federal regulations (instead of State regulation) a. interstate externalities (pollution) b. state protectionism c. unfair competition: State race the bottom "Prisoner's dilemma" d. uniformity e. effectiveness in federal enforcement

1.1 Commerce Clause I.

II. III.

Art. I SS 8 "Congress shall have the power... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...." Why is CC the main source of federal regulatory power a. Cl. 1 is not a general welfare power, so Congress needs to regulate this issue through the commerce clause. i. A. I SS8 cl. 1

1. Wide reading: Provide for general welfare (if cl.1 is wide, the rest of A. I is meaningless)

2. Narrow reading: tax and spend so as to provide for the general welfare Varying views regarding the Commerce Clause a. Initially, Gibbons, the SC adopted an expansive view of the scope of the commerce clause. i. The power to regulate interstate commerce is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the constitution.

ii. Activity outside commerce power if it's an intrastate activity, AND does not extend to or affect other states. iii. Activity inside commerce power if it's interstate activity, OR affects other states. b. Pre-1937 cases: The predominant approach during the early twentieth century used formalistic doctrine to limit the power of the federal government to regulate under the Commerce Clause. Direct effect (formalistic approach) Proof: text of CC No manufacturing

Hammer 1918 p. 177, child labor Schechter 1935 p. 196, chicken

Functional approach (affect interstate commerce) (Adler) Permissible where there are some good reasons for federal regulation. Proof: Original intent The very creation of federal body means it has the duty to regulate things with good reasons Regulate means affect, change, not just directly control Gibbons p. 173, water license Shreveport Railway Rate case p. 191 intrastate activities that affect interstate commerce Stafford v. Wallace p. 192 stream of commerce idea

Carter coal 1936 p. 198, coal mining Champion p. 193 lottery case (only case where government wins) EC Knight p. 190 suger manufacture c. 1937-1995: more expansive view of the Commerce Clause i. National Labor Relations Board v. Jones & Laughlin: Congress can regulate any activity that has a significant effect on interstate commerce whether direct or indirect. ii. United States v. Darby: Fair Labor Standards Act. Substantial effect test: Congress's power to regulate interstate commerce extends to those intrastate activities that affect interstate commerce. iii. Wickard v. Filburn: Aggregation principle: does the class of activities regulated have substantial effect on interstate commerce?
d. After 1995, since Lopez, SC struck down some federal statutes. The modern CC is: i. Congress may regulate under CC (Lopez):

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