Federal legislative power Flashcards
Congress authority to act
i. There must be express or implied congressional power
Is there a general federal police power
- no general fed police power. state and local govts have it. state authority to anything not prohibited.
- exceptions: “MILD” congress has a mild police power.
a. military
b. indian res
c. fed lands and territories
d. D.C.
Necessary and proper clause
congress can adopt all laws necessary and proper to carry out its authorities. Cong can choose ANY means not prohibited by const.
1. ex. : congress allowed to raise army and navy. cong can have a national bake sale OK bc not prohibited
Taxing/ spending power
- may tax and spend for the general welfare. ANY tax and ANY program to spend is ok if it thinks it will serve general welfare.
a. for ex. Sebelius held up individual mandate as valid excersie of tax and spending power. permissible as a TAX
b. However, congress must tax uniformly among the states. Fed tax on an item or activity must be the same from state to state.
Commerce power
a. exclusively domain of congress to regulate channels of interstate commerce—with foreign nations, with indian nations and among of the state. limits : channels, instrumentalities or activities with substantial economic effect on interstate activity.
i. may regulate channels of interstate commerce, roads, channels and internate
ii. may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
1. trucks, boats, planes, internet, phones.
2. cattle, securities, even people if crossing state lines.
a. for ex. cannot take woman across state lines for immoral person. like taking woman across state line for purpose of making person his mistress
- may regulate econ activities that have substantial effect on interstate commerce.
a. for ex. limiting amount of wheat grown for own consumption. allowed because in the aggregate home-grown wheat impacted price of wheat in the country.
b. BUT in area of noneconomic activity, substantial effect cannot be based on cumulative impact.
i. for ex. in VAWA, even though violence against women costs economy billions, the activity is not economic. unconstitutional to let women sue in fed ct. congress cannot regulate sexual assault/ rape. cumulative impact not a basis for finding substantial effect on interstate commerce. the individual activity must have substantial effect..
c. ALSO five justices have said congress cannot regulate inactivity.
i. for ex. – individual mandate in healthcare couldn’t have been upheld under commerce power. congress cannot regulate inactivity.
War and related power
Congress has power to dclare war, raise and support armies, and provide for and maintain a navy
- econ regulation during wartime has been upheld
- military courts and tribunal—congress has power to decide for these.
a. no judicial review of court-martial proceedings.
b. enemy civlians and soldiers may be tried by military courts. but Congress cannot deny habeus corpus review to aliens detained as enemy combatants absent meaningful substitute for habeus - military courts have jdxn over all offenses commited by members of military
Bankruptcy postal, power over citizenship, admirality power
v. bankruptcy power – power to establish bankruptcy rules, shared with states
vii. postal power – may classify and reasonably restrict use of mails
1. congress has monopoly of delivery of the mail. No other system,public or private, can be established absent congressional consent.
2. USPS has been delegated the power to decide whether others may compete with it, which the USPS has used to carve out an exception for extremely urgent letters.
vii. power over citizenship – allowed to establish rules of naturalization
1. can deny anyone for political beliefs
2. but resident aliens must have notice and a hearing before deportation
viii. admiralty power – exclusive to congress unless otherwise decides
10th amendment as a limit on congress’ power
ix. Federal government can tax or regulate if it’s placing burdens on BOTH state and private entities
1. Congress cannot compel state regulatory or legislative action
Cannot commandeer state agents
c. but congress CAN INDUCE state govt action by putting strings on grants, but only if conditions are clearly stated, relate to purpose of the state spending program, and not unduly coercive
i. for ex cong can require 21 y/o drinking age otherwise would lose 5% of fed highway funds. meets all reqs.
ii. HOWEVER, requiring states that take Medicaid money must include people up to 133% of poverty line. this is unconstitutional bc state govts are so dependant on fed Medicaid money, this was too coercive.
d. congress may prohibit harmful commercial activity by state governments.
i. for ex can prohibit state offices from releasing personal information of individuals. congress wasn’t imposing an affirmative duty, rather prohibiting state action.
1. states cant sell dmv lists to advertisers
- Congress’ power under §5 of authorizes laws to enforce 14th amendment. BUT congress may not create new rights or expand scope rights. Can only prevent or remedy rights violations already recognize by courts, in a manner that is congruent and proportionate to remedying constitutional violations.
a. For ex. RFRA sought to restore religious freedom by statute previously under statute. Declared unconst as applied to state and local gov’ts because congress was creating new rights/ expanding scope.
b. congress only allowed to prevent/ remedy prerecognized rights. must be narrowly tailored law.
Delegation of powers
i. no limit on Congress’ ability to delegate legislative power. must have at minimum some guidance. Every delegation has been upheld.
ii. Legislative vetos and line item vetos are unconst. Must have both bicameralism and presentment,and president must sign or veto the bill in its entirety
1. legislative veto—congress tries to overturn exec action without bicameralism and/or presentment. for ex. resolution passed by one house. or does it without presentment.
2. line item veto—pres tries to veto part of bill while signing the rest.
iii. Congress may not delegate executive power to itself or its officers.
Speech and debate clause
immunity for federal legislators—
i. conduct that occurs in the regular course of the federal legislative process and the motivation are immune
1. doesn’t include bribes, speech outside congress, or republication in press release of a defamatory statement originally made in congress
Investigatory power
power of congress to investigate is implied. Must be expressly or impliedly authorized by appropriate house. Can only investigate things into which they can legislate on.
Property clause
x. Property clause—gives congress power to make all needful rules and regulations regarding the territory or other property belonging to the US. Can protect its property and acquire/ dispose of federal property.
