FEDERAL LEGISLATIVE POWER Flashcards
Necessary & Proper Clause
Congress can exercise constitutionally-enumerated powers and all auxiliary (supplementary) powers that are necessary and proper to carry out those enumerated powers
Not an independent source of power–The N&P Clause does not confer free-standing, independent source of power to Congress; it must be used in conjunction with another federal power
Note: Because the N&P Clause is not a source of congressional power, it is usually an incorrect answer choice on the MBE questions regarding Congress’ power to act, unless linked to another source of power
Taxing & Spending Power
Congress may tax and spend in any way deemed necessary for the “general welfare” (a very broad power)
» Note: “General welfare” as an answer choice is usually correct only if question concerns taxing, spending, or an
area within Congress’ limited police power (military, Indian reservations, land, D.C.)
> > Taxes must reasonably relate to to revenue production
(a very low threshold)
Regulations–Congress can use taxing power to achieve a regulatory effect as long as the tax’s dominant intent is to raise revenue and there is some reasonable relationship between the tax and the regulation (low burden to satisfy)
Ad Valorem Property Tax: Tax based on % of the assed value of the property in question
Transaction Tax: Privilege of doing business in a state. Does not discriminate on interstate commerce
Congressional Police Power
Congress has no general police power; except for legislation concerning:
1) Military
2) Indian Reservations
3) Land–i.e federal land or territories
4) District of Columbia
Power to Regulate Commerce (Foreign or Domestic)
The Commerce Clause gives Congress exclusive authority to regulate interstate commerce. The power to regulate intrastate commerce depends on the nature of the activity (economic vs. non-economic)
INTERstate Commerce–Between States
Congress may regulate:
1) Channels;
2) Instrumentalities; OR
3) Economic activities that have a substantial effect on interstate commerce
This Includes persons and things in interstate commerce
INTRAstate Commerce–Within States
* Economic Activities: Congress may regulate commercial or economic activities if there is a rational basis to conclude that the activity, in aggregate, substantially affects interstate commerce
- Non-Economic Activities: Congress may only regulate non-economic activity if it has direct, substantial economic effect on interstate commerce (tougher burden to satisfy)
Dormant Commerce Clause–Limits state laws burdening interstate commerce (i.e. potentially interfering with Congress’ commerce power)
10th A Limitations on Congressional Power
Under the 10th A, all powers not granted to the federal govt, nor prohibited to the states, are reserved to the states
- Limits Congress’ ability to regulate and/or tax states alone
» EXCEPTION: Civil rights; Congress may restrict state
activities that violate civil liberties - Regulations applying to both public and private sector are usually valid
» E.g. Fed minimun wage laws are applicable to state/local govt as well as private sector
Conditional Grants–Congress can induce (but not compel) state regulatory or legislative action through the use of conditional grants
» E.g. Fed highway funds conditioned on states maintaining minimum drinking age of 21
Requirements:
1) Condition must be expressly stated
2) Condition must relate to the purpose of the law at issue (low burden to satisfy)
3) Condition may not be unduly coercive (force or threat)
Congressional Delegation of Powers
Congress has broad authority to delegate legislative powers to executive officers and administrative agencies
- Administrative agencies established by congressional enabling acts can create rules that have the status of law.
Limitations:
» Congress must provide intelligible (understandable) standards to define the scope of legislative authority it delegates
> > Congress may not delegate executive or judicial powers to itself or its officers (e.g. Congress cannot create commissions that enforce or prosecute violations of law)
Note: B/c the delegation power is broad, be wary of answer choices regarding excessive delegation
Legislative & Line-Item Vetos–Unconstitutional
* Legislative Veto–Congress cannot veto a decision by an agency acting pursuant to delegated power. It must be overturned by enacting a superseding law
- Line-Item Veto–President cannot veto part of a bill; would be impermissible delegation of power to the President
For Congress to act there must be:
1) Bicameralism–Passage by both House & Senate; AND
2) Presentment–Give bill to President to sign or veto in its entirety
Speech or Debate Clause
The Speech or Debate Clause provides immunity from prosecution to members of Congress for “legislative acts”
- Applicability–Applies to legislators and aides who perform acts that would be immune if performed by the legislator
» Not applicable to STATE legislators
Scope–Provides immunity for activities occurring in the regular course of the legislative process
* E..g voting, preparing committee reports, conducting hearings, hiring staff
- Outside Scope–Speeches and publications made outside Congress, republication of defamatory statement made in Congress, accepting bribes are not legislative acts
Federal Legislative Power Quick Recap
A. Congress’ authority
1. No police power except for express or implied congressional power.
2. Necessary and proper clause: Only to carry out granted powers.
3. Taxing/spending power: For general welfare.
4. Commerce power: Can regulate channels, instrumentalities, and activities that have effect on interstate commerce.
5. Limit:
a) Tenth amendment: All powers not granted to federal goes to states.
b) §5 of 14th amendment: Can’t create new rights; only provide remedies for existing rights
B. Delegation of congress’ power
1. Congress can delegate to executive and judiciary
2. Not ok:
a) Legislative vetoes: Congress attempt to overturn executive action without bicameralism and presentment.
b) Line item vetoes
