Congressional Power

Question 1

Commerce

Answer 1

1. Interstate commerce - Power to regulate
   • Channels and
   • Instrumentalities of interstate commerce, and
   • Any activity that substantially affects it
2. Substantial economic effect - Power to regulate any activity or combination thereof that has substantial economic effect on interstate commerce
   • Aggregation—Even if an intrastate activity has no direct economic impact, Congress can regulate as long as there is
   o A rational basis for concluding
   o That the “total incidence” of activity in the aggregate
   o Substantially affects interstate commerce
3. Non-economic activity
   • If regulation involves a non-economic activity of traditional state concern, Congress must establish connection between the activity and substantial economic effect in order to regulate it

Question 2

Taxation and spending

Answer 2

1. Taxing
   • Tax upheld if it has reasonable relationship to revenue production
   o Congress has plenary power to impose taxes to raise revenue (or for any public purpose) through General Welfare Clause
2. Spending
   • Power to spend for the general welfare (any public purpose), including conditional federal funding

Question 3

War and defense powers

Answer 3

1. Power to declare war
2. Raise and support armies/navy
3. Govern land/naval forces, and
4. Organize militia
5. Whatever action necessary to provide for national defense

Question 4

Property power

Answer 4

No express limit on power to dispose of US property. However, Congress may only take private property for public use with just compensation and to effectuate an enumerated power

Question 5

Power over aliens and citizenship

Answer 5

1. Plenary power over aliens
   • Subject to due process clause
2. Exclusive authority over naturalization

Question 6

Necessary and Proper Clause

Answer 6

• Power to enact any legislation necessary/proper to execute federal government authority
o But clause not independent source of power so must carry into effect other enumerated powers

Question 7

Enabling Clause of 14th Amendment

Answer 7

• Enables Congress to enforce equal protection and due process rights
o As defined by Supreme Court
o Enforcement must have “congruence and proportionality” between injury to be prevented and means adopted to achieve that end