Federal Legislative Powers

Question 1

Legislative powers overview

Answer 1

Art. I of the Const. provides most of Congress’s powers, primarily:
* Taxing and spending
* Regulating commerce
* Establishing uniform naturalization rules and bankruptcy laws
* Raising and supporting military

Question 2

Executing laws

Answer 2

Executive branch is obligated to execute laws passed by Congress

Question 3

Speech or Debate Clause

Answer 3

Members of Congress have criminal and civil immunity for “legislative acts”
-Applies to activities and documents essential to legislative duties

Question 4

Necessary and Proper Clause

Answer 4

Enables Congress to take any action not constitutionally prohibited to carry out its express powers
* This authority constitutes Congress’s implied powers
* Not an independent source of power: this clause must be used in conjunction with another fed power

Note: this clause is usually an incorrect answer choice to MBE questions regarding Congress’s power to act because the clause is not a source of congressional power on its own

Question 5

Taxing and spending power

Answer 5

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 a question concerns taxing, spending, or an area within Congress’s limited police power (military, Indian reservations, fed land, D.C>)
* Taxes must reasonably relate to revenue production (low threshold)

Question 6

Penalties as taxes

Answer 6

Calling a measure a “penalty” rather than a “tax” is valid if it behaves similarly to a tax (e.g. ACA individual mandate)

Question 7

Taxing power-regulations

Answer 7

Congress can tax to achieve a regulatory effect if:
1) The tax’s dominant intent is to raise revenue; and
2) There is some reasonable relationship between the tax and the regulation (low burden to satisfy)

Question 8

Regulatory spending

Answer 8

Congress can create a regulatory effect by placing conditions on its spending as long as it is not overly coercive

Question 9

Police power

Answer 9

Congress has no general police power, except for legislation concerning:
1) Military
2) Indian reservations
3) Land: i.e. land or territories
4) D.C.

Question 10

Power to regulate commerce

Answer 10

The Commerce Clause gives Congress authority to regulate INTERstate commerce
-Power to regulate INTRAstate commerce depends on the nature of the activity (economic vs. noneconomic)

Question 11

Interstate commerce

Answer 11

Between states
* Congress may regulate channels, instrumentalities, or economic activities that have a substantial effect on interstate commerce
-Includes persons and things in interstate commerce

Note: broad power; beware of answers suggesting Congress has acted beyond its commerce power concerning interstate activity

Question 12

Intrastate commerce

Answer 12

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 a direct, substantial economic effect on interstate commerce (tougher burden to satisfy)

Question 13

Dormant Commerce Clause

Answer 13

Limits state laws burdening interstate commerce (i.e. interfering with Congress’s commerce power)

Question 14

10th Amendment Limitations on Congressional Power

Answer 14

Under the 10A, all powers not granted to the fed govt nor prohibited to the states, are reserved to the states
* Limits Congress’s ability to regulate and/or tax states alone: anti-commandeering principle
-E.g. Congress cannot commandeer states by requiring them to enact law or administer fed. law
-Exception: civil rights-Congress may restrict state activities that violate civil liberties
* Dual application: regulations applying to both public and private sector are usually valid (e.g. fed minimum wage laws are applicable to state/local govt as well as private sector)

Question 15

Conditional grants

Answer 15

Congress can induce (but not compel) state regulatory or legislative action through use of conditional grants
* E.g. fed highway funds conditioned on states maintaining a minimum drinking age of 21
* Requirements:
1) Condition must be expressly stated;
2) Condition must relate to the purpose of the law at issue; and
3) Condition cannot be unduly coercive

Question 16

Congressional delegation of powers

Answer 16

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
-Note: because the delegation power is broad, be wary of answer choices regarding execessive delegation as a limitation on congressional authority

Question 17

Congressional delegation of powers-Limitations

Answer 17

• Congress must provide intelligible 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)
• Major questions: when an agenecy adopts regulations with extraordinary economic and political significance, needs clear congressional authorization

Question 18

Legislative and line item vetoes

Answer 18

Unconsitutional
* Legislative veto: Congress cannot veto a decision by an agency acting pursuant to delegated power
-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
-President must sign or veto a bill in its entirety