Constitutional Law: Legislative Power

Question 1

What are the two types of powers the constitution grants congress?

Answer 1

1. Enumerated

2. Implied

Question 2

Where does Congress’s enumerated powers come from?

Answer 2

Art. 1 Sec. 8

Question 3

Where does Congress’s implied powers come from?

Answer 3

the necessary and proper clause

Question 4

What is not the best source of Congress’s power?

Answer 4

the necessary and proper clause standing alone

Question 5

Is the necessary and Proper Clause itself a basis of power?

Answer 5

No, it merely gives

Congress power to execute specifically granted powers.

Question 6

What is the limitation to the Necessary and Proper Clause?

Answer 6

Congress cannot adopt a law that is expressly prohibited by another provision of the constitution.

Question 7

What is Congress’s taxing power?

Answer 7

Congress has the power to lay and collect taxes, imposts, and excises, but they must be
uniform throughout the United States. [Art. I, §8] Capitation or other direct taxes must
be laid in proportion to the census [Art. I, §9, cl. 4], and direct taxes must be apportioned
among the states [Art. I, §2, cl. 3].

Question 8

Does Congress labeling a fine a “tax” make it a tax?

Answer 8

No, the determination of whether a legislative enactment imposes a tax does not depend on the label Congress gives it, but rather on its function.

Question 9

National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)

Answer 9

law requiring individuals to
purchase health insurance or to pay an additional amount of money to the IRS when
they pay their income tax, the amount of which varies by household income, joint vs.
single filing status, number of dependents, etc., and which is estimated to bring $4
billion annually into federal coffers, functionally is a tax regardless of the fact that
Congress labeled it a “penalty”]

Question 10

What is the uniformity requirement in Congress’s taxing power?

Answer 10

Requirement of uniformity in the levy of indirect taxes (generally, this means any kind
of “privilege” tax, including duties and excises) has been interpreted by the Court to
mean geographical uniformity only—i.e., identical taxation of the taxed Article in
every state where it is found. [Fernandez v. Wiener, 326 U.S. 340 (1945)]

Question 11

What must Direct taxes be?

Answer 11

Apportioned.

A “direct” tax (imposed directly on property or on the person) has seldom been
employed by Congress because of the cumbersome apportionment requirement;
taxes on income from real or personal property were initially held “direct” by the
Court, but the resulting need for apportioning such taxes was obviated by the Sixteenth
Amendment (income tax amendment).

Question 12

Note: Taxes are generally valid.

Answer 12

Absent a specific restriction, be very hesitant to rule against a
tax measure on the exam. A tax measure will be upheld if it bears some reasonable
relationship to revenue production or if Congress has the power to regulate the taxed
activity.

Question 13

What is Congress’s spending power?

Answer 13

Congress may spend to “provide for the common defense and general welfare.” [Art. I, §8]
This spending may be for any public purpose—not merely the accomplishment of other
enumerated powers. However, nonspending regulations are not authorized. Remember that
the Bill of Rights still applies to this power; i.e., the federal government could not condition
welfare payments on an agreement not to criticize government policies.

Question 14

Can Congress regulate through spending?

Answer 14

Congress can use its spending power to “regulate” areas, even where it otherwise has no power to regulate the area, by requiring entities that accept government
money to act in a certain manner (i.e., attaching “strings” to government grants).

Question 15

What does the Commerce power empower congress to regulate?

Answer 15

commerce with foreign nations, and among the several states, and with the Indian tribes

Question 16

What are the two important factors of Congress’s commerce power?

Answer 16

1. includes basically all activity affecting two + states

2. includes transportation or traffic

Question 17

Commerce Clause: Activity affecting 2+ states

Answer 17

Chief Justice Marshall, in Gibbons v. Ogden, 22 U.S. 1 (1824), defined commerce
as “every species of commercial intercourse . . . which concerns more states than
one” and included within the concept virtually every form of activity involving or
affecting two or more states.

Question 18

Commerce Clause: transportation or traffic

Answer 18

The Court has consistently regarded transportation or traffic as commerce, whether
or not a commercial activity is involved.

Question 19

Commerce Clause: transportation or traffic - do it need to be vehicular transportation?

Answer 19

No, Any transmission across state lines, such as electricity, gas, telegraph,
telephone, TV, radio, and mail transmission (including educational materials
and sale of insurance), will constitute interstate commerce.

Question 20

Commerce Clause: What is a “substantial economic effect”?

Answer 20

The Supreme Court has sustained congressional power to regulate any activity, local or
interstate, that either in itself or in combination with other activities has a “substantial
economic effect upon,” or “effect on movement in,” interstate commerce.

Ex. The classic case is the Court’s holding that Congress can control a farmer’s production
of wheat for home consumption. [Wickard v. Filburn, 317 U.S. 111 (1942)] Rationale:
Cumulative effect of many instances of such production could be felt on the supply and
demand of the interstate commodity market.

Question 21

To be within Congress’s power under the commerce clause, a federal law must either:

Answer 21

1. Regulate the channels of interstate commerce;
2. Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or
3. Regulate activities that have a substantial effect on interest commerce.

Question 22

Can Congress limit intrastate activity?

Answer 22

yes if it is of economic or commercial activity and the court can conceive of a rational basis on which congress could conclude that the activity in the aggregate substantially affects interstate commerce. (Gonzales v. Raich)

Note: If the regulated intrastate activity is not commercial or economic, the Court generally will not
aggregate the effects and the regulation will be upheld only if Congress can
show a direct substantial economic effect on interstate commerce, which it
generally will not be able to do. [See, e.g., United States v. Lopez, 514 U.S.
549 (1995)—federal statute barring possession of a gun in a school zone is
invalid; United States v. Morrison, 529 U.S. 598 (2000)—federal civil remedy
for victims of gender-motivated violence is invalid]

Question 23

Can Congress regulate inactivity?

Answer 23

No. The Commerce Clause gives Congress power only to regulate existing
commercial activity; it does not give Congress power to compel activity,
even if failure to undertake the activity may affect interstate commerce.
[National Federation of Independent Business v. Sebelius, 2.a., supra]

Question 24

What part of the Constitution gives Congress the power to declare war, raise and support armies, provide for and maintain a navy, etc?

Answer 24

Art. 1 Sec. 8

Question 25

Congress Economic Regulation Power: During War

Answer 25

Regulatory power of Congress, especially in economic matters and mobilization
of troops, in support of war effort is pervasive (although theoretically limited by
the Bill of Rights); thus, the Court has sustained national price and rent control, as
well as conscription and regulation of civilian/military production and services.

Question 26

Congress Economic Regulation Power: Postwar

Answer 26

To a considerable extent, this pervasive regulatory power may be validly extended
into post-wartime periods both to remedy wartime disruptions [e.g., Woods v.
Cloyd W. Miller Co., 333 U.S. 138 (1948)—rent controls] and to cope with “cold
war” exigencies. Legislation in the field of veterans’ rights and limitations thereon
may be extended indefinitely as long as veterans or their relatives may survive.

Question 27

Military Courts and Tribunals

Answer 27

The constitutional basis of courts of military justice (trial and review of offenses by
military personnel, including courts-martial and reviewing agencies and tribunals) is
not Article III, but rather Article I, Section 8, Clause 14 (congressional power to make
rules for government and regulation of armed forces), buttressed by the Necessary and
Proper Clause.

Question 28

Military Courts and Tribunals: Judicial Review

Answer 28

The regular federal (or state) courts have no general power to review court-martial
proceedings. However, in habeas corpus cases, the Article III courts, including the
Supreme Court, may make a limited inquiry into the military court’s jurisdiction
of the person and offense or the validity of the court’s legislative creation.

Question 29

Military Courts and Tribunals: Court-Martial of Enemy Civilians and Soldiers Permitted

Answer 29

Military courts may try enemy civilians as well as enemy military personnel, at
least during wartime.

Question 30

Can Congress deny habeas corpus review to all aliens detained as enemy combatants absent a meaningful substitute for habeas corpus review?

Answer 30

No.

Question 31

What are the four factors of an adequate substitute for habeas corpus?

Answer 31

A meaningful substitute would allow prisoners to:
(i) challenge
the President’s authority to detain them indefinitely,

(ii) contest the military
commission’s findings of fact,

(iii) supplement the record on review with
exculpatory evidence discovered after the military commission’s proceedings,
and

(iv) request release.

[Boumediene v. Bush, 553 U.S. 723 (2008)]

Question 32

Over what offenses by servicemen and women do military courts have jurisdiction?

Answer 32

All offenses both service connected and not service connected. Also, at the time of the offense and the time the offender is charged.

Question 33

Court-Martial of American Civilians Generally Prohibited

Answer 33

The Supreme Court has denied Congress the power to authorize the court-martial
trial of American civilians as long as actual warfare has not forced courts to shut
down, even though martial law has been declared [Ex parte Milligan, 71 U.S. 2
(1866)]; even though the civilians accused may have been members of the armed
forces when committing the alleged offense [Toth v. Quarles, 350 U.S. 11 (1955)]
or are dependents of military personnel accompanying the latter overseas [Reid
v. Covert, 354 U.S. 1 (1957)] or are civilian employees of the military forces at
overseas bases and installations; such trials by court-martial violate the Fifth and
Sixth Amendments, particularly the right to trial by jury.

Question 34

Calling forth the Militia

Answer 34

Under the Militia Clauses [Art. I, §8, c1. 15, 16], Congress has the power to authorize the
President to order members of National Guard units into federal service—even in circumstances that do not involve a national emergency (e.g., for training outside of the United
States). The President need not obtain the consent of the governor of a unit’s home state to
call it into such service. [Perpich v. Department of Defense, 496 U.S. 334 (1990)]

Question 35

What is Congress’s Investigatory Power?

Answer 35

It is the power  to investigate to secure information as a basis for potential legislation or other
official action (such as impeachment or trying impeachments).

It is a well-established implied
power. It is a very broad power, in that an investigation need not be directed toward enactment of particular legislation, but some limitations on its use do exist.

Question 36

What are the 3 limitations to Congress’s Investigatory Power?

Answer 36

1. Authorized Investigation
2. Witnesses’ Rights
3. Enforcement of Investigatory Powers

Question 37

Limitations on Congress’s Investigatory Power: Authorized Investigation

Answer 37

The investigatory inquiry must be expressly or impliedly authorized by the congressional house concerned, i.e., by statute or resolution creating or directing the investigating committee or subcommittee.

Question 38

Limitations on Congress’s Investigatory Power: Witness’s Rights

Answer 38

1) Fifth Amendment -
The privilege against compulsory self-incrimination (the Fifth Amendment) is
available to witnesses, whether formal or informal, unless a statutory immunity
co-extensive with the constitutional immunity is granted.

2) Relevance -
Written or oral information elicited by the investigative body must be “pertinent”
to the subject of the inquiry.

3) Procedural Due Process -
Witnesses are generally entitled to procedural due process, such as presence of
counsel and right of cross-examination; but it is not yet clear whether such rights
are constitutionally required or whether some of them are required merely by
house rule or statute.

Question 39

Limitations on Congress’s Investigatory Power: Enforcement of Investigatory Powers

Answer 39

Congress can hold a subpoenaed witness in contempt for refusing to appear or answer
before Congress.

Question 40

What is Congress’s Property Power?

Answer 40

Congress has the power to “dispose of and make all needful rules and regulations respecting
the territory or other property belonging to the United States.” [Art. IV, §3] Many other
congressional powers (war, commerce, postal, fiscal, etc.) obviously would be unworkable
if the ancillary power to acquire and dispose of property of all kinds—real, personal, and
intangible—were not also implied from the main grants.

Question 41

Are there limits on Congress’s Property Power?

Answer 41

No..There is no express limitation on Congress’s power to dispose of property owned by the
United States. The power extends to all species of property, such as leasehold interests and
electrical energy, as well as ordinary realty and personalty. Moreover, disposal may involve
direct competition with private enterprise and has never been invalidated on that ground.

Question 42

Property Power: Eminent Domain

Answer 42

Acquisition of property for a public purpose by eminent domain is indirectly recognized by the Fifth Amendment: “. . . nor shall private property be taken for public use,
without just compensation.” Federal taking must be for the purpose of effectuating an
enumerated power under some other provision of the Constitution.

Question 43

Is there a Federal “Police Power”?

Answer 43

No. Congress has no general police power (i.e., power to legislate for the health, welfare, morals,
etc., of the citizens). Thus, on the bar exam the validity of a federal statute cannot rely on
“the police power.” However, Congress can exercise police power-type powers as to the
District of Columbia pursuant to its power to legislate over the capital [Art. I, §8, cl. 17]
and over all United States possessions (e.g., territories, military bases, Indian reservations)
pursuant to the property power.

Question 44

Where does the federal government get to exercise police power?

Answer 44

D.C. pursuant to [Art. I, §8, cl. 17]

Question 45

Bankruptcy Power

Answer 45

Article I, Section 8, Clause 4 empowers Congress “to establish uniform laws on the subject
of bankruptcies throughout the United States.” This power has been interpreted by the
Supreme Court as nonexclusive; i.e., state legislation in the field is superseded only to the
extent that it conflicts with federal legislation therein.

Question 46

Postal Power

Answer 46

Article I, Section 8, Clause 7 empowers Congress “to establish post offices and post roads.”

Question 47

What does it mean that Congress’s Postal power is Exclusive?

Answer 47

The postal power has been interpreted as granting Congress a postal monopoly. Neither
private business nor the states may compete with the Federal Postal Service absent
Congress’s consent. [Air Courier Conference of America v. American Postal Workers
Union, 498 U.S. 517 (1991)]

Question 48

What is Congress’s scope of power in regards to the Postal Power?

Answer 48

Congress may validly classify and place reasonable restrictions on use of the mails,
but it may not deprive any citizen or group of citizens of the general mail “privilege”
or regulate the mail in such a way as to abridge freedom of speech or press (except
under valid standards, such as “obscenity”) or violate the ban of the Fourth Amendment
against unreasonable search and seizure.

Question 49

Who has power over citizenship?

Answer 49

Congress. Article I, Section 8, Clause 4 empowers Congress “to establish a uniform rule of naturalization.”

Question 50

Exclusion of Aliens

Answer 50

Congress’s power to exclude aliens is broad.

Question 51

Exclusion of nonresident aliens

Answer 51

Aliens have no right to enter the United States and can be refused entry because
of their political beliefs. [Kleindienst v. Mandel, 408 U.S. 753 (1972)]

Question 52

Exclusion of Resident Aliens

Answer 52

Resident aliens are entitled to notice and hearing before they can be deported.

Question 53

Naturalization and Denaturalization—Exclusive Control of Congress

Answer 53

Congress has exclusive power over naturalization and denaturalization. The Supreme
Court has held that this grant gives Congress plenary power over aliens (see
XVIII.D.2.a., infra).

Question 54

No Loss of Citizenship Without Consent

Answer 54

Under the Fourteenth Amendment, Congress may not take away the citizenship of
any citizen—native-born or naturalized—without his consent.

EXAMPLE
The Court held unconstitutional a statute that provided for loss of citizenship upon
voting in a foreign election. [Afroyim v. Rusk, 387 U.S. 253 (1967)]

Question 55

Can proof of intent satisfy the consent requirement to denaturalize a citizen?

Answer 55

Yes. A citizen’s intent to relinquish citizenship may be expressed by words or
conduct—and Congress may provide that such intent may be proven by a
preponderance of the evidence. [Vance v. Terrazas, 444 U.S. 252 (1980)]

Question 56

Are children born to US Citizens not on US soil automatically granted citizenship?

Answer 56

No. A person born in another country to United States citizen parents does not have a
constitutional right to become a United States citizen. Congress can grant citizenship
to children born abroad conditioned on their return to live in the United States within
a specified period of time or for a specified number of years. Such a child who fails
to return to the United States loses his grant of citizenship because he has failed to
meet the statutory condition precedent to his final grant of citizenship

Question 57

What is Congress’s Admiralty Power

Answer 57

Although congressional power to legislate in maritime matters is not expressed in the
Constitution, the Supreme Court has implied it from the exclusive jurisdiction given the
federal courts in this field by Article III, Section 2, supported by the Necessary and Proper
Clause of Article I, Section 8.

Question 58

Admiralty Power: Exclusive Power

Answer 58

The congressional power is plenary and exclusive, except to the extent that Congress
may leave (and has left) some maritime matters to state jurisdiction.

Question 59

Admiralty Power: Navigable Waterways

Answer 59

The federal admiralty power attaches to all navigable waterways—actually or potentially
navigable—and to small tributaries that affect navigable waterways. The federal
maritime power is not limited to tidewaters or interstate waters.

Question 60

Power to coin money and fix weights and measures

Answer 60

Congress has the power to coin money and fix the standard of weights and measures under
Article I, Section 8, Clause 5.

Question 61

Patent/Copyright Power

Answer 61

Congress has the power to control the issuance of patents and copyrights under Article I,
Section 8, Clause 8.

Question 62

What kind of discretion does Congress have to delegate its legislative power to executive officers and administrative agencies?

Answer 62

“Broad.” - Moore

Question 63

Limitations on Congress’s Delegation Power: The Power delegated cannot be uniquely confined to congress.

Answer 63

To be delegable, the power must not be uniquely confined to Congress; e.g., the power to
declare war cannot be delegated, nor the power to impeach.

Question 64

Limitations on Congress’s Delegation Power: Clear Standard

Answer 64

It is said that delegation will be upheld only if it includes intelligible standards for the
delegate to follow. However, as a practical matter almost anything will pass as an “intelligible
standard” (e.g., “upholding public interest, convenience, or necessity”).

Question 65

Limitations on Congress’s Delegation Power: Separation of Powers Limitations

Answer 65

While Congress has broad power to delegate, the separation of powers doctrine restricts
Congress from keeping certain controls over certain delegates. For example, Congress
cannot give itself the power to remove an officer of the executive branch by any means
other than impeachment (e.g., if Congress delegates rulemaking power to an executive
branch agency (e.g., the FCC), it may not retain the power to fire the agency head). (See
III.B.1.c.2)a), infra.) Similarly, Congress cannot give a government employee who is
subject to removal by Congress (other than by impeachment) purely executive powers.
(See III.B.1.c.2)b), infra.)

Question 66

Limitations on Congress’s Delegation Power: Important Liberty Interests

Answer 66

If the delegate interferes with the exercise of a fundamental liberty or right, the burden
falls upon the delegate to show that she has the power to prevent the exercise of the right
and her decision was in furtherance of that particular policy.

Question 67

Limitations on Congress’s Delegation Power: Criminal vs. Civil Punishment

Answer 67

The legislature may delegate its authority to enact regulations, the violation of which
are crimes, but prosecution for such violations must be left to the executive and judicial
branches. [See United States v. Grimaud, 220 U.S. 506 (1911)] However, agencies may
enact and impose civil penalties (i.e., fines labeled as civil fines) without prosecution in
court. [Helvering v. Mitchell, 303 U.S. 391 (1938)]

Question 68

What does the speech or debate clause do?

Answer 68

Provides immunity for any speech or debate in either the house or senate. Members of Congress cannot be questioned in any other place. Art. I Sec. 6.

Question 69

Who is protected under the speech or debate clause?

Answer 69

members of congress. Also, the immunity extends to aides who engage in acts that would be immune if performed by a legislator.

NOTE: this clause does NOT provide immunity to state legislators who are prosecuted for violation of federal law.

Question 70

What is the scope of immunity under the speech or debate clause?

Answer 70

Conduct that occurs in the regular course of the legislative process and the motivation behind that conduct are immune from prosecution.

Question 71

What are 3 known exception to the speech or debate clause that are not subject to congressional immunity?

Answer 71

1. Bribes
   - taking of a bribe is not an act in the regular course of the legislative process and is therefor actionable.
2. Speeches Outside of Congress
   - speeches and publications made outside congress are not protected.
3. Defamatory Statements
   - Republication in a press release or newsletter of a defamatory statement originally made in Congress is not immune.

Question 72

What are the two requirements to pass a law?

Answer 72

1. Bicameralism and

2. Presentment