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Bar Con Law > 2) Sep of Powers - Congress > Flashcards

2) Sep of Powers - Congress Flashcards

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1
Q

Congress’ powers are limited to:

A

powers const gives it (only!)

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2
Q

reqs for fed law to be const

A

1) C had power to pass it

2) no rights violation

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3
Q

reqs for state law to be const

A

no rights violation only

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4
Q

police power

A

does not exist UNLESS re DC/fed territories

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5
Q

power to promote the general welfare

A

does not exist UNLESS re DC/fed territories

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6
Q

sources of power for C

A

1) enumerated powers
2) enabling clause (13/14/15)
3) necessary + proper clause

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7
Q

enumerated powers: def

A 
Art 1 Sec 8
commerce
taxing
spending
war/defense
(minors too)
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8
Q

enabling clause: def

A

enforcement power – C has power to legislate to prohibit what the 13,1 4, 15 ams prohibit

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9
Q

nec + proper clause: def

A

choice of means – C has power to pass laws N+P to its OTHER ALREADY EXISTING powers

usu needs to be w another power to be correct

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10
Q

commerce power: rule

A

C can regulate

1) interstate OR
2) commerce

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11
Q

commerce power: interstate: rule

A

C can regulate FOR ANY PURPOSE (inc if not commerce related)

1) channels of IC
2) instrumentalities of IC

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12
Q

channels of IC: def

A

water, roads, air travel, communication, etc

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13
Q

instrumentalities of IC: def

A

goods + ppl that cross state lines, conveyances (cars/planes)

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14
Q

commerce power: commerce: rule

A

substantial effect – C can regulate intRA state economic activity if it affects ISC

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15
Q

cc: substantial effect :def

A

cumulative effect doctrine (basically it’s always a substantial effect)

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16
Q

cc: cumulative effect doctrine def

A

C can regulate an individual who has only a tiny effect on ISC bc if everyone cumulatively does the same thing, it would have a substantial effect

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17
Q

commerce clause: NOT covered

A

intRA state, nonecomomic activity

exs: lots of crimes

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18
Q

commerce clause: intrastate noneconomic activity: exception

A

1) economic crimes (loan sharking)

2) comprehensive scheme of regulation

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19
Q

commerce clause vs state sovereign immunity

A

can’t overcome! (so C can’t use commerce power to create private cause of action for $ damages against state)

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20
Q

commerce clause / race discrim

A

yes! and regulating private actors, it USUALLY comes from CC

but, see state sovereign immunity – can’t bar racial discrim by a state so that private parties could sue the state for $ (under THIS power …)

21
Q

taxing power: def

A

C has power to impose + collect taxes

22
Q

taxing power: def of tax

A

it’s a tax if ANY of these:

1) objectively raises revenue, or
2) subjectively raises revenue (that was C’s purpose, even if it didn’t work), or
3) regulatory

23
Q

taxing power: regualtory: def

A

if C has power to regulate area under ICC or other powers, can use tax as a tool to do so (even if no revenue)

24
Q

spending power: def

A

A1 S8 C1 –> C has power to spend for the general welfare (v. broad – campaign finance ok )

25
Q

spending power: extent

A

C can use to get around limits on regulatory power by passing law that will give state $ in exchange for x (where x is something couldn’t order otherwise)

26
Q

spending: reqs for conditions that C places on states to receive fed funds

A

1) general welfare
2) unambiguous
3) relatedness
4) not unconst
5) no coercion

27
Q

spending: conditions reqs: relatedness, def

A

conditions must relate to the federal program at issue

28
Q

spending: conditions reqs: no coercion: def

A

can’t be so much $$ that states are coerced to accept

29
Q

war + defense powers: list

A

Art 1 Sec 8

1) declare war (not president!)
2) army (raise + support)
3) navy (provide + maintain)
4) militia (organize, arm, call out

30
Q

war power: includes

A

broad authority for national defense measures, in peace or war, such as:

1) draft
2) control wages and prices
3) civilian exclusion (wartime only)

31
Q

war power: DP rights of terrorism suspects

A

USC = yes DP

non-USC: if in US or any place that US has complete j. and control (inc Guantanamo) get SOME dp rights

32
Q

more enumerated powers of Congress (minor): list

A

1) immigration + naturalization
2) investigatory
3) property
4) eminent domain
5) admiralty/maritime
6) bankruptcy
7) postal
8) copyright+ patent
9) speech + debate

33
Q

investigatory power: scope

A

broad, includes anything C could legislate about

34
Q

investigatory power: things can do + limit

A

to facilitate investigation inc ex cite for contempt

limit: but can’t override const rights

35
Q

property power: def

A

power to regulate federal property (DC+ territories) –> broad general legislative power, NOT LIMITED TO ENUMERATED

36
Q

eminent domain: def

A

can take private property + pay compensation (implied –5A takings clause)

37
Q

admiralty + maritime: def

A

complete, plenary power to determine maritime laws in whole country

38
Q

speech + debate clause: def

A

member of Congress can’t be punished (or sued) for anything said in debate on house floor

39
Q

13A: def

A

bans slavery

40
Q

14A: def

A

1) DP
2) EP
3) privileges + immunities

41
Q

15A: def

A

bans race discrim in voting

42
Q

enforcement power: limits

A

1) 14+15: states only (C can’t regulate private indivs
2) create a record–must show widespread violations by state first
3) can’t go too far – fed law must be CONGRUENT + PROPORTIONAL to state law violation

43
Q

enforcement power: limits: congruent and proportional: more

A

ok C to protect what amendement protects or be a bit broader if C’s act is nec to deter or remedy actual violation

44
Q

enforcement power: 2 exs

A

1) no disability discrim (too broad bc 14 am says rational basis)
2) equal unpaid leave for men and women under fmla (ok bc 14a requires impt gvt interest for sex discrim)

45
Q

enforcement power vs sovereign immunity

A

Congress can overcome sovereign immunity! for 13, 14, 15 amendment! (so ok create private right of actiona gainst state for $, in those cases)

46
Q

delegation of power: rule

A

C can create agencies w rule-making authority

47
Q

agency rules

A

have force of law, can prevail over inconsistent state laws

48
Q

delegation of power: limit

A

agency creation must be based on some INTELLIGIBLE PURPOSE that guides agency

Bar Con Law (8 decks)

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