Federal Legislative Power

Question 1

Congress’s authority to act

Answer 1

1. There must be express or implied Congressional power
2. The necessary and proper clause
3. The taxing/spending power and the commerce power
4. The Tenth Amendment as a limit on Congressional powers.
5. Congress’ power under section 5 of the Fourteenth Amendment.

Question 2

Implied Congressional Power

Answer 2

There is no general federal police power - States have the police power Congress has a police power for: Military, Indian Reservations, Federal Lands/Territories, or D.C.

Question 3

Necessary & Proper Clause

Answer 3

congress can choose any means not prohibited by const. to carry out authority

Question 4

The taxing/spending power and the commerce power

Answer 4

1. Congress may tax and spend for the general welfare
2. The Commerce Power

Question 5

The Commerce Power

Answer 5

1. Congress may regulate the channels of interstate commerce
2. Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
3. Congress may regulate economic activities that have a substantial effect on interstate commerce. (In the area of non-economic activity, a substantial effect cannot be based on cumulative impact.) Also, five justices have said that Congress cannot regulate inactivity.
   
   • Personal farming does have a subst. effect (weat or weed)
   • non-economic activity has been sexual assault
   • not buying health insurance is inactivity

Question 6

What are the channels of interstate commerce?

Answer 6

Places where commerce occurs

Question 7

What are instrumentalities of interstate
commerce and persons or things in interstate commerce?

Answer 7

All forms of things that go across state line

Question 8

The Tenth Amendment

Answer 8

The Tenth Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.

Question 9

10th Amendment Rules

Answer 9

1. Congress cannot compel state regulatory or legislative action.
   
   • Note: Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program. Also, the conditions cannot be unduly coercive.
     
     • Losing all funds = unduly coercive b/c of state dependence on funds; but reduction of a % of funds is not unduly coercive
2. Congress may prohibit harmful commercial activity by state governments.

Question 10

Congress’ power under section 5 of the Fourteenth Amendment.

Answer 10

Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by the courts and
such laws must be “proportionate” and “congruent” to remedying constitutional violations.

Question 11

Delegation of powers

Answer 11

• No limit exists on Congress’ ability to delegate legislative power. BUT:
  
  • On the MBE, this answer choice will always be wrong - there has never been a law found unconstitutional as an excess of Congress’ ability to delegate leg. powers.
• Congress may not delegate executive power to itself or its officers

Question 12

Legislative vetos and line-item vetos

Answer 12

Legislative vetos and line-item vetos are unconstitutional.

• Legislative veto is where congress attempts to overturn executive action by evading bicameralism or presentment. Legislative Vetoes are always unconstitutional.
• Line Item Veto is when the President attempts to veto a portion of a bill instead of the whole.

Question 13

Requirements for Congress to Act:

Answer 13

For Congress to act, there always must be:

1. bicameralism (passage by both the House and the Senate) and
2. presentment (giving the bill to the President and sign or veto).

The President must sign or veto the bill in its entirety.