Commerce, taxing, spending, and necessary powers

Black-letter propositions

1. 01

   Commerce power reaches channels, instrumentalities and persons or things in commerce, and intrastate economic activity with a substantial aggregate effect.

2. 02

   Congress may tax and spend for the general welfare; conditional spending must be clear, related, noncoercive, and independently constitutional.

3. 03

   Necessary and Proper allows useful, plainly adapted means not prohibited by the Constitution.

4. 04

   Section 5 of the Fourteenth Amendment permits congruent and proportional remedies for state constitutional violations, not redefinition of substantive rights.

5. 05

   The Thirteenth Amendment enforcement power can reach private badges and incidents of slavery.

Use this attack sequence under time

Common wrong turns

• Congress cannot compel participation in commerce merely to regulate it under the Commerce Clause.
• Necessary and Proper is not an independent freestanding power.
• Conditional funding can become unconstitutional coercion when the threatened loss is overwhelming.

Worked example

Congress requires every inactive individual to purchase a product solely because future purchases affect interstate commerce.

Practice this topic

The enumerated powers in Article I

Article I, Section 8 gives Congress power to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and general welfare, and to regulate commerce with foreign nations, among the several states and with the Indian tribes. Duties, imposts and excises must be uniform throughout the United States. The clause on commerce is the power Cornell describes as the basis for much federal regulation.

The last clause of Section 8 gives Congress power to make all laws that are necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the federal government or any department or officer.

How Cornell describes the doctrines

Cornell says courts have generally taken a broad view of the Commerce Clause. Gibbons v. Ogden allowed regulation of intrastate activity that is part of a larger interstate scheme, and after NLRB v. Jones & Laughlin Steel the Court recognized regulation of activity that has a substantial economic effect on interstate commerce or a cumulative effect. It describes the Necessary and Proper Clause, since McCulloch v. Maryland, as giving Congress implied powers to carry out its enumerated powers.

The clause does not create a power on its own. Tie each exercise to an enumerated power, such as commerce or taxing and spending, and then ask whether the means are necessary and proper.

Frequently asked questions