McCray v. United States,

195 U.S. 27 (1904), argued 2 Dec. 1903, decided 31 May 1904 by vote of 6 to 3; White for the Court, Fuller, Peckham, and Brown in dissent. In 1886, Congress passed legislation based on the taxing power to regulate the production of oleomargarine (see taxing and spending clause). Enacted to prevent product adulteration, the law also reflected industrial competition. McCray was fined fifty dollars for violating the law by purchasing for resale artificially colored oleo at the lower tax rate applied to the uncolored variety. The significant constitutional challenges claimed inappropriate use of the taxing power for regulation rather than for revenue; violation of the *due process and *taking of property clauses of the *Fifth Amendment; and violation of states’ rights to regulate business under the *Tenth Amendment (see state sovereignty and states’ rights).

Justice Edward D. *White argued vigorously against judicial interference with the powers of Congress, especially since an excise tax violated no expressed constitutional limitations on the taxing power. Nor did the Fifth and Tenth Amendments vitiate the original grant of the tax power. Due process was not violated when Congress categorized and taxed products to prevent fraud. Citing *McCulloch v. Maryland (1819), White declined to hold the tax unconstitutional because of its potential negative impact on production of oleomargarine. Reserving the right to inquire into abuses, the Court sustained broad use of the taxing power for purposes beyond revenue raising.

McCray established the taxing power as an additional base for exercise of a federal *police power. Constricted in the 1920s, the tax power was nevertheless reclaimed by the *New Deal as a basis for *general welfare legislation.

Barbara C. Steidle