Cong. Power/NBA, again

Dan L. Burk <burkdanl[_at_]lanmail.shu.edu> wrote:
>
> It seems perfectly clear that Congress could offer intellectual
> property-type incentives under the War Power, Property Power,
> Commerce Power, or whatever power is needed to acheive its goals. In
> fact, in the case of the Orphan Drug Act, the Waxman-Hatch Act, and
> the Atomic Energy Act, that appears to be exactly what it has done.

    Only true if the Congressional end does not run afoul of express limitations contained in Art. I, sec.8.

    If you read Railway Executors Ass'n v. Gibbons, 455 U.S. 457 (1982), I think you will change your mind about Congress' ability to protect facts. In that case, the Court found that Congress did not have the power under the Commerce Clause to avoid limitations contained in the grants of its other Art. I, sec. 8, powers. Congress had passed a law which only benefited certain parties in the Rock Island Railroad bankruptcy. The Court first found the law in violation of the Bankruptcy clause, which only grants Congress the power to enact "uniform" bankruptcy laws. It expressly considered and rejected the argument that Congress could enact the law under the Commerce Clause. The vote was 9-0.

    Since Feist says that the originality requirement is constitutionally required, Congress cannot rely on its other powers to do an end-around the limitation. This reasoning is hardly unsound- -Why would the framers include a limitation in a grant of power if they thought Congress could easily avoid it by reference to another broader grant?

    Paul Heald
    <heald[_at_]jd.lawsch.uga.edu> Received on Thu Feb 13 1997 - 18:33:58 GMT