CYBERLAND UNIVERSITY OF NORTH AMERICA

Dr. Almon Leroy Way, Jr.

University President & Professor of Political Science


POLITICAL SCIENCE 201B

AMERICAN NATIONAL GOVERNMENT & POLITICS



UNIT FOUR

MAJOR POLICYMAKING INSTITUTIONS
IN THE U.S. NATIONAL GOVERNMENT:
LEGISLATIVE, EXECUTIVE, & JUDICIAL



CONSTITUTIONAL POWERS OF CONGRESS:

THE IMPLIED POWERS & THE EXPANSION
OF CONGRESSIONAL AUTHORITY


THE IMPLIED POWERS OF CONGRESS--A DEFINITION:

      The IMPLIED POWERS of Congress are those powers which--

            Are not listed or mentioned in so many words in
            the U.S. Constitution as being expressly delegated
            of Congress;

            But are deemed by Congress and the U.S. Courts to be
            REASONABLY IMPLIED from the enumerated, or expressly
            delegated, powers of Congress.

      The implied powers are deemed by Congress and the federal
      courts to be APPROPRIATE MEANS by which Congress may--

            Exercise its own enumerated powers;

            Put into effect the powers delegated by the U.S. Con-
            stitution to the other branches of the national gov-
            ernment.

IMPORTANT EXAMPLES OF THE IMPLIED POWERS OF CONGRESS:

      (1)  Power to incorporate a national bank.

           Implied from the expressly delegated (enumerated)
           powers of Congress to--

           (a)  Lay and collect taxes;
           (b)  Borrow money on the credit of the United States;
           (c)  Coin money and regulate its value;
           (d)  Regulate interstate and foreign commerce;
           (e)  Raise and support armies;
           (f)  Provide and maintain a navy;
           (g)  Exercise the other war powers.

      (2)  Power to create military and naval academies.

           Implied from the enumerated powers of Congress to--

           (a)  Raise and support armies;
           (b)  Provide and maintain a navy.

      (3)  Power to construct a dam and power plant, generate
           electricity, and sell the surplus electricity.

           Implied from the expressly delegated powers of Con-
           gress to--

           (a)  Regulate and dispose of U.S. government property;
           (b)  Regulate interstate and foreign commerce;
           (c)  Exercise the war powers.

      (4)  To spend money for dredging rivers and harbors and for
           the construction and maintenance of highways, roads,
           streets, railways, canals, dams and locks, and air-
           ports.

           Implied from the enumerated powers of Congress to--

           (a)  Establish post roads;
           (b)  Regulate interstate and foreign commerce;
           (c)  Lay and collect taxes (and, by implication, spend
                money from the U.S. Treasury) to provide for the
                general welfare of the United States.

      (5)  To spend money for education, social security, nation-
           al health insurance, public assistance to the poor,
           programs to improve state and local law enforcement,
           urban renewal and community development, public hous-
           ing, etc.

           Implied from the express power of Congress to lay and
           collect taxes (and, by implication, spend money from
           the U.S. Treasury) to provide for the common defense
           and general welfare of the United States.

      (6)  To regulate and assist agriculture.

           Implied from the enumerated powers of Congress to--

           (a)  Lay and collect taxes (and, by implication, spend
                money from federal funds) to provide for the gen-
                eral welfare of the United States;
           (b)  Regulate interstate commerce.

      (7)  To spend money from the U.S. Treasury for financial
           assistance to the states and local communities in
           their performance of state and local functions.

           Implied from the express power of Congress to lay and
           collect taxes to provide for the general welfare of
           the United States.

EXPANSION OF THE POWERS OF CONGRESS--THE FIVE MAJOR CONSTITUTIONAL PILLARS:

WHAT ARE THE FIVE MAJOR CONSTITUTIONAL PILLARS UPON WHICH THE POWERS OF CONGRESS HAVE BEEN EXPANDED THROUGH JUDICIAL CON- STRUCTION, OR INTERPRETATION?
      THE FIVE MAJOR CONSTITUTIONAL PILLARS:

            (1)  The Necessary and Proper Clause;
            (2)  The National Supremacy Clause;
            (3)  The Commerce Clause;
            (4)  The Tax Clause;
            (5)  The War Powers Clauses.

HOW HAVE THE POWERS OF CONGRESS BEEN EXPANDED THROUGH JUDICIAL CONSTRUCTION, OR INTERPRETATION?
      The U.S. Supreme Court has construed, or interpreted,
      BROADLY and LIBERALLY the enumerated grants of authority
      to Congress.

      In particular, the Supreme Court has broadly construed the
      enumerated grants of congressional authority contained in
      the following clauses of the U.S. Constitution:

            (1)  The Necessary and Proper Clause;
            (2)  The Commerce Clause;
            (3)  The Tax Clause;
            (4)  The War Powers Clauses.

      Moreover, the Supreme Court has interpreted the National
      Supremacy Clause to prevent state interference with the
      national government's exercise of its constitutional pow-
      ers, broadly interpreted.

      REMEMBER:  The foregoing clauses of the U.S. Constitution
      constitute the major constitutional pillars upon which the
      powers of Congress have been enlarged by judicial inter-
      pretation.

THE NECESSARY & PROPER CLAUSE (ARTICLE I, SECTION 8, CLAUSE 18):

      "The Congress shall have power ... to make all laws which
      shall be necessary and proper for carrying into execution
      the ... [enumerated] powers  [of Congress] and all other
      powers vested by this Constitution in the government of
      the United States, or in any department or officer there-
      of."

      The NECESSARY AND PROPER CLAUSE, or ELASTIC CLAUSE, is the
      primary constitutional basis of the IMPLIED POWERS of Con-
      gress.

      This clause, as it is interpreted by the U.S. Supreme
      Court, permits Congress to exercise powers which--

            Are not prohibited to Congress by the U.S. Constitu-
            tion;

            Can be REASONABLY IMPLIED from the powers expressly
            delegated to Congress by the Constitution.

      The Necessary and Proper Clause, as construed by the Su-
      preme Court, allows Congress to choose APPROPRIATE MEANS
      by which it will--

            Exercise its own enumerated powers;

            Put into effect the constitutional powers of the
            executive and judicial branches of the national gov-
            ernment.

      BROAD CONSTRUCTION of the Necessary and Proper Clause by
      the U.S. Supreme Court has permitted the legislative au-
      thority of Congress to be expanded far beyond the enum-
      erated  grants of constitutional power contained in the
      U.S. Constitution.

      The leading U.S. Supreme Court decision regarding interpre-
      tation of the Necessary and Proper Clause is, of course,
      MCCULLOCH V. MARYLAND (1819).

            In MCCULLOCH V. MARYLAND, the Supreme Court read the
            doctrine, or theory, of IMPLIED POWERS into the Nec-
            essary and Proper Clause.

            The phrase "NECESSARY AND PROPER" was interpreted to
            mean "APPROPRIATE," "USEFUL," and/or "CONVENIENT"--
            instead of "ABSOLUTELY NECESSARY," "ESSENTIAL," or
            "INDISPENSABLE."

THE NATIONAL SUPREMACY CLAUSE (ARTICLE VI, PARAGRAPH 2):

      "This Constitution, and the laws of the United States which
      shall be made in pursuance thereof; and all treaties made
      ... under the authority of the United States, shall be the
      supreme law of the land; and the judges in every state
      shall be bound thereby, anything in the constitution or
      laws of any state to the contrary notwithstanding."

      In MCCULLOCH V. MARYLAND (1819), the U.S. Supreme Court
      held that the states have no power, by taxation or other-
      wise, to impede or interfere with the national government's
      enforcement of LAWS ENACTED BY CONGRESS IN PURSUANCE OF THE
      U.S. CONSTITUTION.

      In MCCULLOCH V. MARYLAND, the Supreme Court ruled that
      state interference with exercise by Congress of any of its
      constitutional powers, whether enumerated or implied, is a
      violation of the principle. or doctrine, of the SUPREMACY
      OF NATIONAL LAW, as stated in Article VI of the U.S. Con-
      stitution:

            If there is a conflict between a state law and a na-
            tional law that Congress has a constitutional right
            to pass, then it is the STATE law that has to give
            way.

THE COMMERCE CLAUSE (ARTICLE I, SECTION 8, CLAUSE 3):

      "The Congress shall have power ... to regulate commerce
      with foreign nations, and among the several states...."

      TYPES OF COMMERCE:

            TWO TYPES OF COMMERCE TO BE REGULATED BY CONGRESS:

            (1)  FOREIGN, OR INTERNATIONAL, COMMERCE:

                   Commerce between the U.S.A. and other coun-
                   tries.

            (2)  INTERSTATE COMMERCE:

                   Commerce among the states of the American
                   federal union.

            ONE TYPE OF COMMERCE TO BE REGULATED BY THE STATES:

              INTRASTATE COMMERCE:

                 Commerce carried on within the borders of a
                 state.

            The U.S. Constitution, as originally interpreted,
            reserved to the states the power to regulate INTRA-
            STATE COMMERCE--i.e., commerce carried on within the
            borders of a state.

      THE MEANING OF "COMMERCE," IN THE SENCE OF THE COMMERCE
      CLAUSE:

            COMMERCE:

                  Trade;

                  Traffic in commodities--i.e., the buying and
                  selling of goods;

                  All forms of commercial intercourse, includ-
                  ing--

                        All forms of transportation;

                        All forms of communication, including
                        transmission of messages via telegraph,
                        telephone, radio, and television.

      THE SCOPE OF CONGRESSIONAL POWER TO REGULATE COMMERCE:

            INTERSTATE COMMERCE:

                  In giving Congress the power to regulate com-
                  merce "among the several states," the Commerce
                  Clause, as interpreted by the U.S. Supreme
                  Court, authorizes Congress to regulate any and
                  all COMMERCIAL ACTIVITY INVOLVING THE PASSAGE
                  OF COMMODITIES, PERSONS, OR MESSAGES ACROSS
                  STATE LINES.

            SUCCESSIVELY BROADER INTERPRETATIONS OF "COMMERCE":

                  The term "commerce" in the Commerce Clause has
                  been subject to successively broader interpre-
                  tations by Congress and the Supreme Court.

                  "Commerce" has come to mean almost all forms of
                  business, or economic, activity.

                  Since 1937, MANUFACTURING has been included in
                  the meaning.  Since 1947, AGRICULTURE has been
                  included.  Regulating commerce came to mean
                  regulating MANUFACTURING, CHILD LABOR, FARM
                  PRODUCTION, and CONDITIONS OF EMPLOYMENT (i.e.,
                  WAGES and WORKING HOURS).

                  Today, the regulatory power of Congress extends
                  to any economic, or business, activity that--

                        Americans carry on with foreign nations
                        or their subjects (FOREIGN, or INTERNA-
                        TIONAL Commerce);

                        Or

                        Affects more than one of the American
                        states or the free flow of commerce
                        among the American states (INTERSTATE
                        COMMERCE).

                  The Supreme Court, in a number of cases, has
                  ruled that there are circumstances under which
                  Congress may regulate INTRASTATE COMMERCE--com-
                  mercial, or business, activity within a state.

                        Congress has the power to regulate intra-
                        state commerce when the intrastate com-
                        merce substantially affects interstate or
                        foreign commerce.

                              If the intrastate commerce directly
                              or indirectly affects interstate or
                              foreign commerce to a significant
                              degree, intrastate commerce falls
                              under the regulatory power of Con-
                              gress.

            THE TYPES OF ECONOMIC ACTIVITY WHICH CONGRESS MAY
            REGULATE:

                  (1)  Foreign, or international, commerce;
                  (2)  Interstate commerce;
                  (3)  Intrastate commerce when it directly or
                       indirectly affects interstate or foreign
                       commerce to a significant degree.

                  Today, there are few aspects of the American
                  economy that--

                        Do not significantly affect commerce in
                        more than one state;

                        Are therefore not subject to congression-
                        al regulation.

      USING THE COMMERCE CLAUSE TO GO BEYOND ECONOMIC REGULATION:

            The Commerce Clause has been used by the U.S. Supreme
            Court to uphold the constitutionality of congression-
            al regulatory legislation that goes beyond economic,
            or business, matters.

                  EXAMPLES:

                  (1)  Federal Anticrime Legislation:

                       Various statutes dealing with criminal
                       activity in interstate commerce:  Congres-
                       sional legislation regulating--

                       (a)  The transportation and sale of fire-
                            arms in interstate commerce;
                       (b)  The transportation and sale of drugs
                            in interstate commerce;
                       (c)  Persons charged with crime in a state
                            crossing one or more state lines in
                            the act of fleeing the state to es-
                            cape justice;
                       (d)  Kidnapping involving the crossing of
                            one or more state lines.

                  (2)  The Civil Rights Act of 1964:

                       A federal statute forbidding discrimina-
                       tion in interstate commerce--

                             Because of race, religion, or na-
                             tional origin in places of public
                             accomodation operated by PRIVATE
                             business firms;

                             Because of race, religion, national
                             origin, or sex in the case of em-
                             ployment by PRIVATE business firms.

                  HEART OF ATLANTA MOTEL V. UNITED STATES (1964):
                  KATZENBACH V. MCCLUNG (1964):

                        The Supreme Court found ample power in
                        the Commerce Clause for Congress to pro-
                        hibit discrimination against persons in
                        accomodations which--

                              Serve substantial numbers of inter-
                              state travelers;

                              Or

                              Rely upon interstate commerce for a
                              substantial part of their supplies
                              and materials.

            THE COMMERCE CLAUSE & THE NATIONAL POLICE POWER--A
            SUMMARY:

                  The Commerce Clause is an important constitu-
                  tional base on which Congress has developed a
                  national police power.

                  [POLICE POWER:  The authority of government
                  to regulate human behavior in the public in-
                  terest.]

THE TAX CLAUSE (ARTICLE I, SECTION 8, CLAUSE 1):

      "The Congress shall have power to lay and collect taxes
      ... to pay the debts and provide for the common defense
      and general welfare of the United States;"

      THE GENERAL WELFARE CLAUSE:     [In the Tax Clause.]

            "The Congress shall have power to lay and collect
            taxes ... to ... provide for ... general welfare of
            the United States;"

            The General Welfare Clause, contained in the Tax
            Clause, gives Congress power to levy taxes (and, by
            implication, appropriate money from the U.S. Treas-
            ury) to provide for the general welfare of the U.S.A.
            --i.e., to promote the GENERAL INTERESTS, or COMMON
            GOOD, of the American nation as a whole.

                  To say it another way, Congress is given the
                  power to tax and spend in the NATIONAL INTER-
                  EST, or NATIONAL PUBLIC INTEREST.

            Congress lacks constitutional authority to pass laws
            solely on grounds that the laws will promote the gen-
            eral welfare, or national interest, of the country.

            Congress may, however, levy taxes and appropriate
            federal funds for the purpose of promoting the gen-
            eral welfare.

            THE SOCIAL SECURITY CASES (1937):

                  The U.S. Supreme Court interpreted the taxing
                  and spending power of Congress very broadly.

                  The Supreme Court recognized the broad power of
                  Congress to promote the general welfare through
                  federal taxation and expenditures.

                  In the SOCIAL SECURITY CASES, the Supreme Court
                  maintained that the scope and content of the
                  General Welfare Clause in the Tax Clause were
                  for Congress to determine.

                  The Court held that the power of Congress to
                  lay and collect taxes and appropriate funds
                  from the national treasury to provide for the
                  general welfare is a VIRTUALLY UNLIMITED POWER.

                        Congress possesses almost unlimited power
                        to tax and spend for whatever purposes it
                        deems necessary to promote the general
                        welfare, or national interest, of the
                        U.S.A.

      USE OF THE SPENDING POWER TO INCREASE THE REGULATORY POWER
      OF CONGRESS:

            If Congress lacks constitutional authority to DIRECT-
            LY regulate a particular activity, it can regulate
            and control the activity INDIRECTLY.

            Congress can indirectly regulate and control the
            activity through an expenditure of funds from the
            U.S. Treasury.

            EXAMPLE--EDUCATION IN THE PUBLIC ELEMENTARY & SECOND-
            ARY SCHOOLS:

                  The power to provide for and regulate public
                  elementary and secondary education in the
                  states is a power reserved to the states by
                  the U.S. Constitution.

                  Congress lacks constitutional power to regulate
                  DIRECTLY elementary and secondary education in
                  the states.

                  However, Congress DOES have power to appropri-
                  ate federal funds to provide financial assis-
                  tance to the states and local public school
                  districts in supporting elementary and second-
                  ary education.

                  HERE'S HOW IT WORKS:

                        Congress decides that it is in the na-
                        tional interest, or general welfare, of
                        the U.S.A. to encourage and support ef-
                        forts to provide young Americans the op-
                        portunity to obtain a high-quality basic
                        education.

                        Congress enacts legislation offering the
                        states and their local school districts
                        grants of federal money to aid them in
                        their efforts to improve the quality of
                        basic education in their elementary and
                        secondary schools.  [This pactice is
                        known as "fedederal aid to education."]

                        If the offer of federal money is accepted
                        by a state or school district, it must
                        follow certain FEDERAL GUIDELINES.

                        The FEDERAL GUIDELINES are the conditions
                        which Congress attaches to its grants of
                        federal money.

                        In order to receive and continue receiv-
                        ing the federal aid, the state or school
                        district must meet the conditions at-
                        tached to the grants.

                        By attaching conditions to its grants of
                        money, Congress regulates INDIRECTLY what
                        it cannot, by law, directly control.

                        Because Congress puts up the money, it
                        has a very strong voice--in fact, the
                        dominant voice--in determining how the
                        money will be spent.

THE WAR POWERS CLAUSES (ARTICLE I, SECTION 8, CLAUSES 11-16):

      THE WAR POWERS CLAUSES & THE NECESSARY & PROPER CLAUSE:

            The national government of the U.S.A. has the power
            to wage war and do whatever is appropriate to wage
            war successfully.

            In the contemporary era of total wars as well as
            frequently occurring limited wars, this means the
            power of the national government to do almost any-
            thing that is not a direct and flagrant violation
            of the U.S. Constitution.

      THE WAR POWERS CLAUSES & THE NECESSARY & PROPER CLAUSE,
      COUPLED WITH THE INHERENT POWERS OF THE NATIONAL GOVERN-
      MENT:

            Under modern conditions of total war, the War Powers
            Clauses and the Necessary and Proper Clause, coupled
            with the inherent powers of the national government
            in foreign affairs and international relations, con-
            fer on Congress and the national government greater
            authority than does the entire remainder of the U.S.
            Constitution.

      EXAMPLES OF ACTIONS OF THE NATIONAL GOVERNMENT THAT HAVE
      BEEN AUTHORIZED BY CONGRESS DURING TIME OF INVOLVEMENT IN
      A MAJOR WAR:

      (1)  Drafting persons and materials for the Armed Forces;
      (2)  Price ceilings (price controls) imposed on goods and
           services offered for sale in the private sector of the
           economy;
      (3)  Allocation and rationing of raw materials;
      (4)  Government control and direction of the production,
           marketing, and consumption of any and all products;
      (5)  Detention without warrant and forcible relocation
           of entire segments of the American population whose
           loyalty to the U.S.A. was considered to be question-
           able, due to their particular ETHNICITY, or NATIONAL
           ORIGIN;
      (6)  Taking into custody persons suspected of being enemy
           sympathizers and confining them without trial to gov-
           ernment operated detention camps for the duration of
           the war;
      (7)  Government regulation and control of the channels of
           mass communication (radio, newspapers, magazines,
           etc.), including the government's--
           (a)  Excluding from the channels of mass communication
                news and views deemed to be detrimental to suc-
                cessful prosecution of the war;
           (b)  Filling the same channels of mass communication
                with government-sponsored political propaganda
                and doctored news (slanted and distorted ac-
                counts of current events) in order to--
                    Build up and maintain high morale within the
                    civilian population as well as within the
                    Armed Forces;
                    &
                    Justify America's involvement in the war and
                    enhance popular support for the war effort.



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MAJOR POLICYMAKING INSTITUTIONS
IN THE U.S. NATIONAL GOVERNMENT:
LEGISLATIVE, EXECUTIVE, & JUDICIAL


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