Federal Legislative Power

Question 1

Taxing and Spending

Answer 1

Congress has the power to spend for the general welfare. Subject to rational basis.

Under this power, Congress may “regulate states by imposing explicit conditions on the grant of money to state or local governments.”

Such conditions will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program as long as the conditions are:
1. clearly stated
2. related to the purpose of the program, and
3. not unduly coercive

Always pick “tax and spend” over commerce for STRONGEST argument for Congress. General Welfare usually wrong, UNLESS coupled with “tax and spend!”

Question 2

The Lopez Test: Non Commercial Activity

Answer 2

Congress seeks to regulate noneconomic or noncommercial intrastate activity under the Commerce Clause

Factual finding that the activity regulated has a substantial economic effect on interstate commerce.