[Music] today we're going to talk about the powers of congress article 1 section 8 lists the powers of congress such as the power to declare war and to collect taxes duties imposed and excises then we get to article 1 section 9 which specifies some limits on the powers of congress denying it the power to grant titles of nobility for example or to suspend the writ of habeas corpus except in cases of rebellion and invasion but what are other limits on the powers of congress well throughout american history the answer to that question has turned on a debate about the meaning of two clauses in article 1 section 8 in particular the commerce clause which gives congress the power to regulate commerce with foreign nations and among the several states and the necessary and proper clause which gives congress the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers let's begin with one of the most important constitutional debates in early america the battle over the constitutionality of the national bank and that battle played out in one of the most important supreme court decisions of all time mccullough versus maryland this landmark decision addressed the powers of congress and in particular congress's power to create a national bank the national bank was the brainchild of alexander hamilton and when george washington was president hamilton was his treasury secretary as you may remember from the musical he was the leading advocate of national power within the government and as treasury secretary he came up with a robust economic plan and the central part of the plan was creating a national bank basically he thought the national government should play a really important role in setting national economic policy and the national bank was at the center of that vision in hamilton's view the states just couldn't deal with many key issues of economics and finance only the nations could through this unified national economic policy so once congress passed the law that created a national bank president washington asked his cabinet to weigh in on its constitutionality before he decided whether or not to sign it and the key constitutional question was whether congress had the power to establish a national bank hamilton said yes thomas jefferson said no and washington sided with hamilton and signed the bill so congress established the national bank fast forward a couple of decades the bank was generally considered to be a success and by 1816 even president madison had abandoned his former constitutional objections and signed the charter for a second bank into law jefferson though continued to insist that a bank was unconstitutional and this view became more widespread after the bank was blamed for the financial downturn following the panic of 1819. in the wake of that panic opposition to the bank grew and bank opponents channeling earlier arguments by jefferson and madison argued that a national bank went beyond the enumerated powers of congress under article 1. basically there was no established bank clause in article 1 end of story nevertheless chief justice john marshall and the supreme court upheld the constitutionality of the national bank in mccullen maryland channeling many of hamilton's arguments from decades earlier the case arose out of a maryland law which was designed to undermine the operation of the second national bank of the united states in maryland basically maryland is trying to use its taxing powers to tax the national bank out of existence within its borders and mccullough who's the president of the maryland branch of the national bank refused to pay the tax in his supreme court opinion mccullough in maryland chief justice john marshall gave a broad reading of congress's powers and two famous quotes from the opinion encapsulate john marshall's constitutional vision the first passage lays out marshall's approach to interpreting the constitution this is john marshall a constitution to contain an accurate detail of all the subdivisions of which its great powers will admit and of all the means by which they may be carried into execution would partake in the prolixity of a legal code and could scarcely be embraced by the human mind we must never forget that it is a constitution we are expounding so in other words martial is saying you can't actually list all of the specific powers or else the constitution is going to become a legal code rather than a constitution the second key passage describes the level of fit necessary to uphold an act of congress focusing on the match between the means and the ends this is marshall again let the end be legitimate let it be within the scope of the constitution and all means which are appropriate which are plainly adapted to that end which are not prohibited but consistent with the letter and spirit of the constitution are constitutional so while the power to charter a bank wasn't specifically listed in the constitution marshall said it flowed from other powers that were in other words it was implied by the rest of the constitution's tax for example congress's power to lay and collect taxes to borrow money to regulate commerce to declare and conduct a war and to raise and support armies and navies marshall then turned to the necessary and proper clause and concluded that it supported a reading of congress's article 1 powers beyond those specifically listed in the constitution we call these implied powers because they're implied from the other powers even though they're not specifically listed for marshall congress needed to be able to meet the needs of an expanding vast economy and nothing in the constitution stood in the way of a national bank and finally the court concluded that maryland had no power to tax a national institution in addition to recognizes to recognizing uh congress's power to charter the bank marshall emphasized that the power to tax involves necessarily a power to destroy and therefore states had no power to tax national institutions because under article 6's supremacy clause which says that federal law is supreme over state law the national law is supreme and that's why a state like maryland couldn't use its taxing power to destroy a legitimate national institution so that's mccullough versus maryland and it was central to early debates about congressional power but the mccullough decision did not resolve definitively our constitutional debates about the powers of congress and those debates over the course of the 19th and 20th century and today involve at least three questions involving the text of the commerce clause in particular what is the meaning of commerce what's the meaning of among the several states and what's the meaning of to regulate the question is how broadly or narrowly should all those words be interpreted from the 1830s until the 1930s the question of how broad congress's power to regulate commerce uh was turned on the question of the meaning of the word commerce for nearly a century the court held that congress had the power to regulate trade and navigation but not manufacturing and other methods of production in other words trade is commerce but manufacturing is not commerce and that question came to a head during the new deal period in the 1930s when the supreme court struck down a series of laws that were at the heart of franklin d roosevelt's new deal on may 27 1935 which was known as black monday the court handed down three unanimous opinions striking down parts of the first new deal on the ground that they created unchecked centralized federal power and exceeded congress's power to regulate interstate commerce among other constitutional limitations when franklin roosevelt heard of the court's decisions he was stunned by the justice's unanimity and he proposed a court-packing plan in 1937 that would have given him the right to appoint a new justice for every member of the court who refused to retire after turning 70. the court packing plan was defeated in the senate but the court changed its mind later that year about the constitutionality of the new deal and it began to uphold economic legislation that had previously struck down the swing justice was named owen j roberts and he unexpectedly changed his position his about face was called the switch in time that saved nine for example a decision striking down child labor laws was reversed and the distinction between commerce and manufacturing was abandoned with a new legal understanding congress could regulate any activity that affected interstate commerce even if the activity itself didn't involve commerce and the new deal revolution as some called it reached its zenith in a case called wickard versus filburn from 1942. there the court rejects a challenge to a law called the agricultural adjustment act in 1938 which basically limited the amount of wheat that a farmer could grow in his own backyard and the case involved a farmer called roscoe filburn who was growing wheat in his own backyard so that he could feed the animals on his own farm he wasn't selling it in interstate commerce he wasn't selling it to anyone at all he was just using it for his own animals and the court upheld the law nevertheless and held that the national government could tell mr filburn to stop growing his wheat because if he used his own wheat he might buy less wheat from other farmers and this could affect the interstate wheat market as a whole by lowering the price of wheat that other people were bringing to the marketplace so that was a very broad interpretation of congress's power to regulate interstate commerce and it persisted for a long time between the 1930s and the 1990s and during that period the court adopts what's called the preferred position doctrine where it treats laws regulating economic activity far more deferentially than laws regulating rights that are enumerated in the bill of rights and this approach prevails for several decades but the legal landscape changes in the 1990s when the request court treats these cases of the high water mark of congressional power and re-examines the limits on congress's power in a case called lopez versus united states that involved guns in schools a topic that we all read a lot about today it was someone called alfonzo lopez who was arrested for carrying a concealed weapon in his own high school and he's charged under a national law called the gun free schools act of 1990s which banned people from bringing guns into school zones mr lopez challenged his conviction arguing that the law exceeded congress's power to regulate interstate commerce and in a 5-4 decision the supreme court agreed with him and struck down the law this was the first time that the supreme court had struck down a federal law under the commerce clause since 1937 and the court noted that carrying a gun into schools wasn't an economic activity and therefore it wasn't the kind of private activity that congress had the authority to regulate under the commerce clause because it didn't have a clear link to interstate commerce in the end the court used the lopez decision to push back against the broadest reach of the new deal revolution which made it hard to identify any limits on congress's power to regulate interstate commerce in lopez and in united states versus morrison which was a case from 2000 the court can find regulatory authority to interstate economic activity in other words economic activity that takes place between two states and in addition in a concurring opinion in a case called gonzales and rage from 2005 just as antonin scalia held that under the lopez decision congress may regulate even non-economic local activity if that regulation is a necessary part of a more general regulation of interstate commerce more recently in the affordable care act case of nfib versus sibelius from 2012 a majority of the justices found that the obamacare healthcare mandate which requires americans to engage in the economic activity of buying health insurance was beyond the powers of congress under both the commerce clause and the necessary and proper clause chief justice roberts wrote the individual mandate cannot be upheld as an exercise of congress's power under the commerce clause that clause authorizes congress to regulate interstate commerce not to order individuals to engage in it moreover chief justice roberts continued even if the individual mandate is necessary to the acts insurance reforms such an expansion of federal power is not a proper means for making those reforms effective nevertheless chief justice roberts provided the fifth vote to uphold the affordable care act by concluding that the penalty enforcing the insurance requirement was a tax rather than a commerce clause regulation as the supreme court continues to reconsider the meaning of words like commerce regulate and necessary and proper it's increased the number of federal laws and regulations that it's striking down is unconstitutional the statistics are striking the supreme court struck down only two federal laws between marbury versus madison in 1803 and dred scott in 1857. it struck down 46 federal laws in the 53 years between 1942 and 1995 that was the high water mark of the new deal revolution when the court is being pretty deferential but it struck down 49 federal laws in the 20 years between 1995 the year of the lopez decision and 2019 that's striking down more laws in half the time the debate over the scope of congress's power to regulate the economy is one of the most important constitutional debates on the supreme court today as our two scholars on the national constitution center's interactive constitution conclude the dispute over the breadth of the meaning of commerce turns in large part on the purpose one attributes to the clause and to the constitution as a whole at philadelphia in 1787 they note the convention resolved that congress could legislate in all cases to which the states are separately incompetent or in which the harmony of the united states may be interrupted by the exercise of individual legislation that was a resolution quoting james madison in the virginia resolutions proponents of an expansive reading claim that the power to regulate commerce should extend to any problem that the states cannot separately solve those who support a narrower reading observe that the constitution aims to constrain as well as to empower congress and that the broadest reading of the commerce power extends well beyond anything the framers imagined [Music]