Other Federalism premises The treaty and war powers Missouri V. Holland – Migratory birds

• Holmes 1920. Treaty power implies an unspecified ability of Congress to agree to that which it cannot directly legislate. [What if Congress had passed Gun Free Zones Act in order to comply with treaty?]

• Facts. Congress attempted to regulate the killing of migratory birds within the United States. This statute was struck down as not being within any enumerated congressional authority. A treaty was then enacted between the U.S. and Great Britain, governing migration of birds between the U.S. and Canada; the act prohibited the killing or capture of certain birds within the U.S. The state of Missouri claimed that the treaty invaded rights guaranteed to it under the 10th Amendment.

• Holding. The treaty and its regulations are valid, and do not violate any state’s 10th Amendment rights. The treaty power is explicitly given to Congress, and thus furnished authority for this particular treaty. Furthermore, migration of wild birds is a national problem, best dealt with by a national solution; therefore, no 10th Amendment rights of individual states will be allowed to stand in the way of such a solution.

Woods V. Cloyd w. Miller Co.

• 1948. The war power’s impact on federalism has principally arisen in a context of economic regulations promulgated during wartime. This case broadly construed Congress’ right to promulgate such economic regulations as an adjunct to the war power. This case suggests that Congress’ war power implies ability to enact domestic legislation that otherwise is ordinarily beyond its competence.

• Facts. This case involved the constitutionality of the Housing and Rent Act of 1947, by which Congress sought to impose rent controls because of the post-war housing shortage.

• Holding. The SCt held that although actual combat had terminated, a state of war still technically existed. Furthermore, the shortage directly resulted from the war; therefore, Congress could act to combat the shortage under its power to take all “necessary and proper” steps to enforce an enumerated power (the war power).

The taxing power Bailey V. Drexel Furniture Co.

• 1922. Holds that taxes as a pretext cannot be used for purposes that Congress could not pursue by direct regulatory legislation.

• Background. Recall Congress’ attempt to prohibit the shipment of products of child labor in interstate commerce was struck down by the SCt in Hammer.

• Facts. Shortly thereafter, Congress tried to achieve a similar result by enacting the Child Labor Tax Law of 1919, which imposed a federal excise tax of 10% of annual net profits on every employer of child labor in specified industries. The constitutionality of this use of the taxing power was attacked in this case.

• Act struck down. SCt invalidated the law, holding that it was really a penalty, not a tax. SCt conceded that taxes are often enacted with incidental regulatory motives. But here, the tax’s prohibitory purpose was clearly paramount; for instance, the amount of the tax was not proportional to the extent to which child labor was used, and the tax was only payable if the employer had scienter (e.g. only if he knew that the child was underage). Since the measure was really for regulatory purposes, it had to be judged by the same standards as the original Child Labor Law invalidated in Hammer; as such, the tax was invalid because it invaded regulatory areas left by the 10th Amendment to the states.

• Koppelman:

• Critique – how can we distinguish between tax and penalty?

• Bailey was overruled by Darby and Heart of Atlanta Motel.

• But tax on guns near schools probably would not be upheld given Lopez.