Chapter 5

OTHER NATIONAL POWERS

The previous chapter covered the Commerce Clause, clearly the most important source of federal power. This chapter considers other sources of federal authority:

•     Taxing power: Under the “taxing power,” Congress is given a far-reaching ability to tax in order to raise revenue.
  •     Taxation as regulation: Congress may also regulate via taxation.
•     Spending power: Under the “spending power,” Congress may “provide for the common Defense and general Welfare of the United States. … “
  •     Conditional spending: Congress may place conditions on its spending power as a kind of regulation. This is true even if Congress could not regulate in an area directly (because the area regulated would be of such completely local concern that the commerce power would not be triggered). Conditions placed upon the doling out of federal funds are usually justified under the “Necessary and Proper” Clause.
  •     “General Welfare” Clause: There is no independent congressional power to pursue the “general welfare.” The only relevance of general welfare is that Congress when it taxes and spends must be pursuing the general welfare (a requirement that has very little independent significance today).
•     War power: Congress is given the power to declare war, and to tax and spend for national defense.
•     DC: Congress can regulate the District of Columbia.
•     Federal property: Congress can regulate and dispose of federal property (e.g., federal parks).
•     Enforcement of Civil War amendments: Congress can enforce the post-Civil War amendments (13th, 14th and 15th).

I. THE TAXING POWER

A. Several provisions on tax: Several constitutional clauses relate to the power of the federal government to tax. The basic power is given in Article I, §8: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises. … ”

1. Independent federal power: This power to tax is an independent source of federal authority. That is, Congress may tax activities or property that it might not be authorized to regulate directly under any of the enumerated regulatory powers (e.g., the Commerce Clause). Tribe, p. 318.