CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #11

B. The Taxing Power

  • Express limitations on federal taxing power
    • Art. I §8 cl. 1: "duties, imposts and excises shall be uniform throughout the United States" ("indirect" taxes)
      • U.S. v. Ptasynski, p. 195 (1983): is geographical uniformity required?
      • If not, what kind of uniformity is required?
    • Art. I §9 cl. 4: "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken"
    • Art. I §9 cl. 5: "No Tax or Duty shall be laid on Articles exported from any State"
  • When is a tax not a tax but a regulation?
    • What follows from finding a "tax" law to be a regulation? Is it necessarily invalid?
      • U.S. v. Constantine, n. a p. 194 (1935) (21st Amendment!)
      • Child Labor Tax Act case, cited p. 194 (1922) (commerce clause!)
    • SONZINSKY V. U.S., p. 193 (1937): National Firearms Act of 1934
      • On what activity is the tax imposed?
      • Does the tax generate revenue?
      • Is its purpose to generate revenue, or to regulate certain firearms traffic?
      • If Congress had regulated explicitly, would that have been invalid?
    • After these cases, how does one know when one has a tax or a regulation?

C. The Spending Power

  • Art. I s. 8 cl. 1: "pay the Debts and provide for the common Defence and general Welfare of the United States"
    • is "general welfare" a limitation? Buckley v. Valeo, p. 202 (1976)
    • who decides if an expenditure promotes "general welfare"? Helvering, p. 200
  • When is an expenditure a regulation?
    • U.S. v. Butler, p. 196 (1936)
      • if the expenditure is unconst., how come it is the tax that is challenged?
      • is this decision still good law? if not, what has changed?
    • Steward Machine Co. v. Davis, p. 198 (1937): unemployment comp.
      • who is being "regulated" by the expenditure? should that matter?
  • can Congress regulate the behavior of recipients of federal expenditures, without showing direct effect on the federal funds received?  Sabri v. U.S., p. 201

D. War and Treaty Powers

  • Sources: Art. I §§8, 10; Art. II §§2,3; concept of sovereignty: Curtiss-Wright, p. 204
  • "War Power": when does it begin and end, vis-a-vis actual hostilities? WOODS, p. 205
  • Treaty Power: Art. II §2 par. 2 cl. 1
    • Rank of treaties, vis-a-vis state law (Hauenstein, p. 207) and federal statutes (Chinese Exclusion Cases, p. 208)
    • Constitutional limitations
      • Vis-a-vis states: MISSOURI V. HOLLAND, p. 208 (1920)
      • Vis-a-vis Bill of Rights: Reid v. Covert, p. 211 (1957)
    • Executive agreements (not Treaties): Belmont and Pink, pp. 210-11