Federal Legislative Power and 10th Amendment Limitations on Fed Power

Question 1

In general, what are the major federal legislative powers to be aware of for the exam?

What are the major limitations on federal legislative power to be aware of?

Answer 1

1. Necessary and Proper Power
2. Taxing Power
3. Spending Power
4. Commerce Power

LIMITATIONS:

1. No Federal Police Power (but see “mild” exceptions)
2. 10th Amendment

Question 2

What is the general rule with regards to the legislative power and “enumerated and implied powers” ?

Answer 2

Congress can exercise:

1. Those powers ENUMERATED in the constitution; PLUS
2. any power NECESSARY AND PROPER to carry out all powers vested in ANY BRANCH of the federal gov

Question 3

Describe congress’s “necessary and proper power”.

Answer 3

Necessary & Proper “Power” –>

Congress can make all laws necessary and proper for executing any power granted to any branch of the federal gov

NOTE –> this will never be used alone, it should always go with another enumerated power

Question 4

Describe congress’s “Taxing Power”?

Answer 4

Congress’s Taxing Power –>

Taxes will be upheld if
(i) they bear a REASONABLE RELATIONSHIP to revenue production; OR

(ii) congress has power to regulate the activity taxed

NOTE –> whether something is a TAX or a REGULATION depends on its function rather than on label given by congress

Question 5

Describe congress’s “Spending Power”

Answer 5

CONGRESS’s Spending Power –>

1. Congress may spend to “provide for the common defense and general welfare”
2. Spending may be for any public purpose. (Power is broad).
3. May NOT induce state to violate constitution

NOTE –> fed gov can tax and spend for the “general welfare.” It CANNOT directly legislate for it.

Question 6

Describe congress’s “Commerce Power”.

What does congress have power to regulate under commerce clause (4)?

Answer 6

GENERAL RULE –> Congress has EXCLUSIVE power to regulate commerce with:

(1) foreign nations;
(2) indian tribes; and
(3) among states

__________________
Congress has power to regulate:

1. CHANNELS of interstate commerce
2. INSTRUMENTALITIES of interstate commerce
3. PERSONS and THINGS in interstate commerce
4. Activities that have a “SUBSTANTIAL EFFECT” on interstate commerce
   - See special rules for intrastate

Question 7

With regards to commerce clause and

“activities that have a SUBSTANTIAL EFFECT on interstate commerce” - what rules apply if the activity is INTRASTATE?

Answer 7

Economic or commercial activity –> WILL be UPHELD if:

1. there is a RATIONAL BASIS on which congress can conclude
2. that activity IN AGGREGATE substantially affects interstate commerce

EXAMPLE –> growing wheat, or marijuana, even if for personal consumption

Non-economic or commercial activity –> will be upheld ONLY if:

• congress can show a DIRECT SUBSTANTIAL ECONOMIC EFFECT ON INTERSTATE COMMERCE (court will NOT aggregate)
• NOTE –> this is hard to prove, prob won’t succeed

EXAMPLE –> possessing gun in school zone, gender-motivated violence

Question 8

Does congress have the power to compel activity under the commerce clause?

Answer 8

No. It may only regulate existing commercial activity.

Question 9

Does congress have a federal police power?

Answer 9

GENERAL RULE –> No

Exceptions (“MILD”):

1. Military Bases
2. Indian territory
3. Federal Lands
4. D.C.

Question 10

Describe congress’s power over citizenship.

Describe congress’s power over aliens.

Answer 10

In General –>

1. congress has EXCLUSIVE power over NATURALIZATION and DENATURALIZATION
   - HOWEVER –> congress may NOT take away the citizenship of any citizen (native born or naturalized) without his consent
2. congress may REFUSE entry to aliens SUMMARILY bc of their political beliefs
   - HOWEVER –> RESIDENT ALIENS are entitled to NOTICE and HEARING before they are deported

Question 11

May congress DELEGATE legislative power?

Answer 11

Congress may delegate legislative power to EXECUTIVE or JUDICIAL branch, as long as:

1. INTELLIGIBLE are set; AND
2. power is not UNIQUELY confined to congress (power to declare war, impeach)

NOTE –>

1. intelligible standards is very easy to establish. Basically anything passes
2. congress MAY NOT appoint members of a body with ADMINISTRATIVE or ENFORCEMENT powers