Last time we saw that federal powers are:
Enumerated (named)
Limited (not plenary)
Supreme (hierarchically superior)
Federal government does not have plenary powers and is presumed incapable of acting until proven otherwise.
Federal Power must be traced to the text of the constitution (“We the people” — alle Staatsgewalt geht vom Volke aus)
Federal power may be implied but only as a rational means to the end of an enumerated power. (Means-Ends Rational Basis Review – proportionality latu sensu)
“power to tax is the power to destroy”
Political question doctrine: when the decision of an issue such as whether to wage war, to raise a tax, is committed to another branch of government it is
non-justiciable (non recevable, klage unzuläßig).
Political questions are, like political rights, enforced at the ballot box, not at court.
Political questions feature: No judicially manageable standard.
NLRB
Contracts clause
10th Amendment
Commerce there is trade, traffic (Verkehr)
Effects analysis “effecting commerce”.
Federal Commerce power is plenary.
Rule: “Although activities may be intrastate in character
when separately considered, if they have such a close and substantial relation
to interstate commerce that their control is essential or appropriate to
protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that
control”
when separately considered, if they have such a close and substantial relation
to interstate commerce that their control is essential or appropriate to
protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that
control”
Vocabulary:
waive
excise
equity
excise tax
HELVERING
Facts?
ISSUES:
1) “whether the tax imposed upon employers by § 804 of the Social Security Act is within the power of Congress under the Constitution,”
2) “whether the validity of the tax imposed upon employees by § 801 of the Social Security Act is properly in issue in this case,
and if it is, whether that tax is within the power of Congress under the Constitution.”
RULES:
Standing (Zuläßigkeit)
“case or controversy”
Injury in fact
mootness a
ripeness
10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.”
Constitutional Doctrines
“constitutional as applied”
selective unconstitutionality
Separability Clause=Congress can, and does, include provisions which indicate that if one clause is found unconstitutional the remainder of the act shall, or
shall not stay in force.
“general welfare” – static or dynamic?
emergency clauses?
Parsimony
Rational review – reasonable basis
(proportionality latu sensu)
RATIONALE
Problems with Social Welfare programs at the several states (=Bundesländer)
“welfare magnets”
competitivity
costs
Is the tax on employer versus tax on employee distinction tenable? Useful?
Was it a breach of the corporate directors fiduciary duty to pay the tax which they regarded as illegal?
May congress tax for *Any* purpose?
Or only for constitutional ends?
There is an Express federal tax power (means)
but what about the ends?
Are constitutions always somewhat provisional? (Provisorium) due to the fact they ultimately must govern all conceivable situations?
Wickard v. Filburn