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1) You are interpreting the 'Necessary and Proper" clause without respect to the 'proper' part of it. I agree that effective regulation of many areas requires r

by nickff 10y ago

1) You are interpreting the 'Necessary and Proper" clause without respect to the 'proper' part of it. I agree that effective regulation of many areas requires regulation of intrastate commerce, but that is improper. 2) Customs was a power given to the federal government, as it was the primary method of taxation, and regulation of international commerce. 3) The ratifiers of the Constitution were most concerned with preventing general warrants, as had been commonly issued by the British as a tool of invasive monitoring and oppression, and the Fourth Amendment was included to prevent these practices. The warrant-less searches we see today are operating in a manner similar to the general warrants, but without even an explicit general warrant. 4) The Constitution has no provision allowing for Congress to delegate any criminal, civil, or regulatory law or rule-making, thus such delegation is un-enumerated and impermissible. The president only has the authority to "take Care that the Laws be faithfully executed", and not even to exercise discretion in an arbitrary fashion. 5) The Tenth Amendment is simply an explicit statement that all powers not explicitly mentioned in Article I, Section 8 are out-of-bounds for the federal government.

rayiner 10y ago
1) No I'm not. Article I, Section 8, gives Congress power to "To regulate commerce . . . among the several states." When I buy a snickers bar at a vending machine in D.C. using a debit card associated with my California bank, that's interstate commerce. No need for a "necessary and proper" analysis. 2) Nothing in the Constitution gives the federal government power over "customs." It gives Congress the power to "collect duties." Clearly, Congress interpreted that in 1789 to mean it could create an agency to administer the collection of duties. But that same reasoning applies to any other agency, when the subject of that agency's duties involves an enumerated power. 3) General warrants gave authorities the right to go into peoples' houses and search them for contraband with no probable cause. Warrantless searches we see today do not allow the government to do that. Also: the Constitution doesn't say anything about general warrants. It just prohibits "unreasonable searches." What is there in the text of the Constitution to say that an warrantless exigent circumstances search or a border search is "unreasonable?" Besides your own opinion? 4) The Constitution "vests" legislative powers in Congress. The non-delegation doctrine interprets "vests" to require Congress to exercise those powers itself, but nothing about the words requires that construction. E.g. Article I gives Congress the power to "collect taxes." Obviously Congress can delegate that authority--the Constitution clearly does not contemplate Congress itself going out and collecting taxes. 5) No, the 10th amendment says "the powers not delegated to the United States by the Constitution" are out of bounds for the federal government. But the 10th amendment isn't what makes that true--it's inherent in the design of the Constitution. So any 10th amendment issue is really a fight about what was "delegated to the United States by the Constitution."
- nickff 10y ago
  1) I agree that regulation of the importation of chocolate bars from one state to another is within the proper power of Congress, though regulation of the actual vending machine would clearly be up to the state. On the other hand, I have read Article I Section 8 many times, and I still cannot agree that Wickard v. Filburn was correctly decided; I would say that the federal regulation of intrastate commerce was necessary to that scheme, but it was improper. 2) I agree that Congress created the Customs Service to carry out an enumerated power according to laws passed by Congress, and would say that the Navy, Internal Revenue Service, and Treasury were created in a manner compliant with the constitution (and its amendments). Health and Human Services, Housing and Urban Development, and the Department of Education are not compliant with the Constitution. 3) I agree that searches of foreigners at the border are not even required to be reasonable, and searches of citizens must only be reasonable. Reading people's correspondence without a warrant was never considered 'reasonable', and I have no evidence that 'metadata' was considered less important than the contents of the correspondence. There is also no provision for 'collecting and storing information about citizens, but not looking at it unless you really want to'. 4) According to my reading of the Constitution, Congress must establish the laws/rules for the collection of revenue, and fund/authorize the relevant agency. After Congress does this, it is the President's job to "take care that the laws be faithfully executed", which I interpret as meaning that they should hire and supervise people to do the job Congress told them to do. 5) I sympathize with your view, but the entire Bill of Rights was meant to be a dead-letter by that definition. I am sure you aware that some founders made the case that the Bill of Rights was entirely superfluous, as the federal government had never been given the power to regulate speech or firearms, search citizens arbitrarily and invasively, force them to confess to crimes, or forcibly station soldiers in their homes. Unfortunately, the Bill of Rights has proven to be vital (if insufficient) to the preservation of liberty.
  - tptacek 10y ago
    Regarding (3): There's no direct connection in the Constitution between the word "reasonable" and the word "warrant". "Warrant" is there to to limit the scope of the kinds of warrants that can be generated --- to prevent the "general warrant". "Reasonable" is there to make sure all searches, with or without a warrant, must survive a "reasonableness" test --- they must be related to some legitimate goal of government. If you attempt to design a legal system off the idea that all searches require warrants, you wind up in crazytown: for instance, the police, apprehending a mugger they have just observed holding up a couple at gunpoint, cannot reasonably search the criminal. Regarding (5): The framers in fact rejected a previous iteration of the language of the 10th Amendment that would have reserved to the states any powers not expressly delegated in the Constitution. So we know that's not what they meant.

by nickff 10y ago

rayiner 10y ago

1) No I'm not. Article I, Section 8, gives Congress power to "To regulate commerce . . . among the several states." When I buy a snickers bar at a vending machine in D.C. using a debit card associated with my California bank, that's interstate commerce. No need for a "necessary and proper" analysis. 2) Nothing in the Constitution gives the federal government power over "customs." It gives Congress the power to "collect duties." Clearly, Congress interpreted that in 1789 to mean it could create an agency to administer the collection of duties. But that same reasoning applies to any other agency, when the subject of that agency's duties involves an enumerated power. 3) General warrants gave authorities the right to go into peoples' houses and search them for contraband with no probable cause. Warrantless searches we see today do not allow the government to do that. Also: the Constitution doesn't say anything about general warrants. It just prohibits "unreasonable searches." What is there in the text of the Constitution to say that an warrantless exigent circumstances search or a border search is "unreasonable?" Besides your own opinion? 4) The Constitution "vests" legislative powers in Congress. The non-delegation doctrine interprets "vests" to require Congress to exercise those powers itself, but nothing about the words requires that construction. E.g. Article I gives Congress the power to "collect taxes." Obviously Congress can delegate that authority--the Constitution clearly does not contemplate Congress itself going out and collecting taxes. 5) No, the 10th amendment says "the powers not delegated to the United States by the Constitution" are out of bounds for the federal government. But the 10th amendment isn't what makes that true--it's inherent in the design of the Constitution. So any 10th amendment issue is really a fight about what was "delegated to the United States by the Constitution."

nickff 10y ago
1) I agree that regulation of the importation of chocolate bars from one state to another is within the proper power of Congress, though regulation of the actual vending machine would clearly be up to the state. On the other hand, I have read Article I Section 8 many times, and I still cannot agree that Wickard v. Filburn was correctly decided; I would say that the federal regulation of intrastate commerce was necessary to that scheme, but it was improper. 2) I agree that Congress created the Customs Service to carry out an enumerated power according to laws passed by Congress, and would say that the Navy, Internal Revenue Service, and Treasury were created in a manner compliant with the constitution (and its amendments). Health and Human Services, Housing and Urban Development, and the Department of Education are not compliant with the Constitution. 3) I agree that searches of foreigners at the border are not even required to be reasonable, and searches of citizens must only be reasonable. Reading people's correspondence without a warrant was never considered 'reasonable', and I have no evidence that 'metadata' was considered less important than the contents of the correspondence. There is also no provision for 'collecting and storing information about citizens, but not looking at it unless you really want to'. 4) According to my reading of the Constitution, Congress must establish the laws/rules for the collection of revenue, and fund/authorize the relevant agency. After Congress does this, it is the President's job to "take care that the laws be faithfully executed", which I interpret as meaning that they should hire and supervise people to do the job Congress told them to do. 5) I sympathize with your view, but the entire Bill of Rights was meant to be a dead-letter by that definition. I am sure you aware that some founders made the case that the Bill of Rights was entirely superfluous, as the federal government had never been given the power to regulate speech or firearms, search citizens arbitrarily and invasively, force them to confess to crimes, or forcibly station soldiers in their homes. Unfortunately, the Bill of Rights has proven to be vital (if insufficient) to the preservation of liberty.
- tptacek 10y ago
  Regarding (3): There's no direct connection in the Constitution between the word "reasonable" and the word "warrant". "Warrant" is there to to limit the scope of the kinds of warrants that can be generated --- to prevent the "general warrant". "Reasonable" is there to make sure all searches, with or without a warrant, must survive a "reasonableness" test --- they must be related to some legitimate goal of government. If you attempt to design a legal system off the idea that all searches require warrants, you wind up in crazytown: for instance, the police, apprehending a mugger they have just observed holding up a couple at gunpoint, cannot reasonably search the criminal. Regarding (5): The framers in fact rejected a previous iteration of the language of the 10th Amendment that would have reserved to the states any powers not expressly delegated in the Constitution. So we know that's not what they meant.