Federal Legislative Power

Question 1

What are the broadest limits on federal legislative power?

Answer 1

Congress has no general power to pass laws; can only pass laws pursuant to enumerated powers

Exceptions: federal land, Indian reservations, D.C.

Question 2

What is the necessary and proper clause?

Answer 2

Not a basis of legislative power on its own, but allows Congress to to choose any necessary and proper means auxiliary to carrying out an enumerated power.

Question 3

What are Congress’ enumerated powers?

Answer 3

• Taxing and Spending Powers: may tax and spend for general welfare
• Commerce Power
• War and Related Powers (e.g. declare war, raise and support armies, economic regulation during wartime, rules for military courts)
• Investigatory Power (must be implied to further Congress’s other powers)
• Property Power: dispose of and make rules for territories and other properties of the United States
• Bankruptcy Power: establish uniform rules for bankruptcy (not exclusive from states)
• Postal Power: establish reasonable restrictions on use of mail (exclusive power)
• Power of Citizenship: exclusion of aliens and control of naturalization/denaturalization
• Admiralty Power
• Coin Money
• Patent/Copyright Power: control issue of patents/copyrights

Question 4

Can Congress attach strings to its spending?

Answer 4

Yes, as long as strings are not unduly coercive.

Question 5

What non-interstate commerce can Congress regulate?

Answer 5

• Foreign nations

- Indian tribes

Question 6

What is Congress’ interstate commerce power?

Answer 6

Congress can regulate:

• channels and instrumentalities of commerce
• activities with substantial effect on interstate commerce
• intrastate economic activity that has a substantial effect in the aggregate

BUT not

• noneconomic activity that does not directly affect commerce; or
• compelling participation in commerce (but can still essentially do this through taxing and/or spending; see Sebelius)

Question 7

How does Congress’ commerce power relate to the 14th Amendment?

Answer 7

Congress can indirectly ban private discrimination by Commerce power.

(public discrimination regulation only allowable through 14A)

Question 8

How can Congress delegate it powers?

Answer 8

To agencies: as long as there are intelligible principles

To president: no line-item veto

To Congress: no legislative veto to void duly enacted laws without bicameralism and presentment

Question 9

Does Congress have general police powers to regulate for the general welfare?

Answer 9

No, Congress can only regulate if it falls within its enumerated powers (but can broadly do so)

States and localities do have a broad police power to regulate for the general welfare if their regulation is not pre-empted.

*Exception: there is broad police power for Congress in Washington DC

Question 10

What is required for Congress’s exercise of its taxing power to be valid?

Answer 10

• Must bear some reasonable relation to revenue production; or
• Congress must have the power to regulate what is being taxed.

Question 11

What is required for Congress’s exercise of its spending power to be valid?

Answer 11

It must be for any public purpose.

Question 12

What is the speech or debate clause?

Answer 12

legislators immune from conduct that occurs in the regular course of the federal legislative process

• but not bribes, speeches outside Congress, or republication outside of Congress of defamatory statement

Question 13

What are bicameralism and presentment requirements?

Answer 13

Always required and Congress cannot change!

Bicameralism: passage of bill by both houses

Presentment: present bill to President for veto or signature