Federal Legislative Power Flashcards
Broadly speaking, what four scenarios will the bar exam test when it comes to Congressional Power to act?
- Express or Implied Congressional Power
- Necessary and Proper Clause
- Taxing and Spending Power
- Commerce Power
- The Property Clause of Article IV
Does Congress have a general police power?
No!
Congress does have police powers in which 4 circumstances? (Remember MILD)
— Legislating for the MILITARY
— For INDIAN Reservations
— For FEDERAL LANDS
— For DISTRICT OF COLUMBIA
What is the Necessary and Proper ”Power?”
Why will the Necessary and Proper Clause usually be the wrong answer on the MBE as the basis for Congressional action?
Gives Congress the power to make all laws necessary and proper for executing any power granted to any branch of the federal government.
The Necessary and Proper Clause does not standalone. It must be in conjunction with another federal power.
What is the Taxing and Spending Power?
It gives Congress the authority to create any tax to raise revenue.
And create any spending programme to spend money if Congress believes it will be good for the country (Common Defence and General Welfare).
Why is an MBE answer which states that a particular law is supported by the Necessary and Proper Clause always wrong?
Because another federal power must underlie the law. The Necessary and Proper Clause cannot stand alone to justify Congressional action.
Can the Federal Government legislate for General Welfare?
No, only tax and spend for it.
What power does the Commerce Clause provide Congress?
It gives Congress the power to regulate all foreign and interstate commerce, including:
— the CHANNELS of interstate commerce
— INSTRUMENTALITIES of interstate commerce
— PERSONS or THINGS involved in interstate commerce
— ECONOMIC ACTIVITIES that have a SUBSTANTIAL EFFECT on interest commerce
What are the two limitations you need to know regarding Congress’s ability to regulate economic activities that have a substantial effect on interstate commerce?
- Congress cannot regulate INACTIVITY
2. A substantial effect cannot be based on CUMULATIVE IMPACT
Can Congress compel state regulatory or legislative action?
No, but it can induce action by putting strings on grants.
The conditions must be:
— Expressly stayed
— Related to the purpose of the spending programme; AND
— The condition cannot be unduly coercive
When can Congress act to prevent or remedy violations of rights already recognised by the courts?
The laws must be proportionate and congruent to remedying the Constitutional violation.
That means no new rights or expanding the scope of rights.
Does Congress have the ability to delegate its legislative powers?
Yes, always
Legislative vetos and line-item vetos are always what?
Unconstitutional
For Congress to act, there just always be a passage of law by whom?
Both the House and the Senate. Known as BICAMERALISM and PRESENTMENT
Can Congress delegate EXECUTIVE POWER?
No
