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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