Commerce Clause, Enumerated Powers, Branches Flashcards
3 sources of Congressional Power
Mnemonic: PEN
1) Enumerated Powers–generally all re: power and money)
2) Enabling Clauses of Recon. Amendments
3) Necessary and Proper Clause
Enumerated powers
-Taxing Power
- Spending Power/Borrowing Power
-Commerce Clause
-War + Defense Powers
-Immigration + Naturalization
-Investigation
-Eminent Domain (arguably implicit)
-Admiralty + Martime
-Copyright/Patent
-Postal
-Bankruptcy
Commerce Clause Areas
Channels of interstate commerce (highways, waterways, air traffic)
Instrumentalities of interstate commerce–what travels in i. comm. (cars, trucks, boats, etc)
Activities that substantially affect interstate commerce (substantial effect, cumulative effect, comprehensive scheme)
CANNOT reg intrastate noneconomic activity (unless part of comp scheme)
CAN often reg intrastate economic activity (ex. loansharking–affects flow of commerce)
Substantial Effect Commerce Clause Doctrine
Can regulate economic activity, carried on in one state or many, that has substantial effect on interstate commerce
Does it affect the flow of goods and people across state lines? (ex. union rights–labor disputes affect flow)
Cumulative Effect Commerce Clause Doctrine
Can regulate activities with small effect on individually but which have substantial cumulative effect on i. commerce when put together
Ex. wheat grown on own land, for own consumption
Comprehensive Scheme Commerce Clause Doctrine/Exception
Can regulate intrastate non-econ. activity IF part of larger comprehensive scheme/series of laws
Ex. laws protecting endangered species regulating transfer of endangered animals–can also regulate intrastate sale, because tied to overall scheme)
Commerce Cause and Purpose
Meet criteria = OK–purpose of leg. irrelevant
Passes test, but real goal to prevent intrastate discrimination = still valid
Taxing Power
Can impose + collect taxes to pay debts + spend for gen welfare
Met if:
Raises revenue (objective test) OR
Designed to raise rev (subjective test) OR
Congress has power to regulate what being taxed (regulatory test)
Purpose irrelevant
Don’t care about revenue, goal punishment –if meet test = irrelevant
Spending Power + Conditions on Funds
CAN place conditions on receipt of fed funds IF
1) Spending serves gen. welfare AND
2) Condition unambiguous AND
3) Condition related to goal of fed program (relatedness) AND
4) Amount in question not so much that state “coerced” into acceptance
Can’t force states to do uncon. action
Way to get around inability to directly reg (ex. public schools)–carrot + stick
Spending Power
Power to spend for general welfare
General welfare= v. broad (ex. single local bridge, $$ to pol. candidates to reduce corp. reliance)
NOT gen welfare if self-dealing/corruption
War + Defense Powers
-Declare war (maj. vote)
-Raise + support armies
-Provide + maintain navy
-Org, arm, disciple, call forth militia
-Wartime powers
-Military courts for armed forces, court-martials, enemy combatants
Wartime Powers
IF war declared, Congress can:
-Activate draft + selective service
-Wage, price, + rent controls on civilian econ.
-Exclude civilians from restricted areas
Investigatory Power
Broad power–anything w/in legit lawmaking functions
Can do what needed to facilitate investigations (ex. subpoena, contempt), if not violating person’s rights
Eminent Domain
Implied power, not explicit–private prop for public use
-Takings Clause (5th A)–if do so, must give just comp
Admiralty and Maritime Power
+ necessary and proper clause = complete + plenary power re: maritime laws
Bankruptcy Clause
“Establish uniform laws on the subject of Bankruptcies throughout the United States”
Postal Power
Post offices, post roads
Speech and Debate Clause
CANNOT prosecute members of Congress for anything they say during debate on the floor
Copyright and Patent Power
“Promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”
Civil War Amendments
Have power to enforce through appropriate leg–but 14th + 15th ONLY apply to state action
14th + 15th–must have
1) Widespread violations by state AND
2) “Congruent and proportional” to violations
Executive Powers
“VAPER”
-Enforcement
-Removal
-Veto
-Appointment
-Pardon
Removal Power
Purely executive appointee: pres. can remove w/out cause
Executive appointee + fixed terms/quasi judicial: need for-cause
Congress cannot give itself the power to approve/remove a fed. official
Pocket Veto
President gets bill less than 10 days before the end of leg. session, + refuses to sign it
Otherwise–doesn’t sign w/in 10 days = becomes law
Presidential Military Powers
-Commander in Chief
-Use of military force to respond to surprise attack on US (but not declare war)
-Make battlefield tactical decisions
(otherwise–if Congress + pres disagree, Congress wins)
Treaties v. Executive Agreements v. Statutes v. State Law
Treaties v. Federal law: last-in time prevails
Treaty = same status as fed law–no more, no less
Executive Agreement v. State Law: executive agreement wins
Executive Agreement v. Statute/Treaty: statute/treaty wins (even in wartime)
Congress vs. President
General rule: Congress can prevent president from acting, so long as statute Congress passes itself constitutional (ex. fed law saying can’t seize steel mills = pres. can’t say wartime emergency, seize)
Impeachment
House: power to impeach (like indictment)
Senate: power to try
Pres. can’t pardon impeachment, because not a criminal process
Appropriations Power
If Congress directs president to spend funds x way, pres. has no power to impound (refuse/delay spending funds)
Vs. if give discretion re: how to spend funds–can chose how to allocate
Dormant Commerce Clause
States CANNOT discriminate v. out of state economic actors (v. Priv. + Imm. Clause—out of state persons)
Commerce Clause + D.P. Clause of 14th
Two types:
1) Discriminatory on face–burden on state–> show compelling + necessary
2) Applies in and out of state–generally OK, unless clearly excessive
CAN have higher reqs on intrastate goods–no dormant comm clause if burden own goods/actors
Includes corporations—v. Priv + Imm Clause
State Regulation of only Out-of-State Goods (discrimination on face)
Dormant Comm. Clause = State must show:
1) Serves compelling interest AND
2) Necessary to achieve interest
Exceptions: Congress allows, market participant, not fundamental rt (ex. recreational)
State Regulation of In and Out-of State Goods (even-handed)
Even handed + legit local interest = allowed
UNLESS
burden on interstate commerce clearly excessive vs. “benefits”
Does this reg impose major burden on i. commerce, with little evidence of significant benefit?
Dormant Commerce Clause exceptions
1) Explicit Congressional authorization to legislate (even though would violate otherwise)
2) Market participant exception-can discriminate if state acting as market participant (ex. buying supplies for state agency use–“we’re buying, we must only buy-in state”)
