Federal Legislative Powers

Question 0

ART I on Constitution

Answer 0

Article I grants Congress legislative powers, yet the 10th Amendment declares that those powers not delegated to the US by the Constitution, nor prohibited by the states, are reserved to the states (Federalism)

Question 1

Congress Authority

Answer 1

Congress may only at if there is express or implied authority in the Constitution

• Express: Law and collect taxes, regulate commerce with foreign nations, declare war, etcc.
• Implied: Necessary and Proper Clause - for carrying into executing the listed powers

Question 2

Questions to ask when analyzing a legislative act:

Answer 2

1. Does Congress have the authority to create this law?

2. Is the law prohibited elsewhere in the constitution?

Question 3

Congress has four main provisions in the Constitution granting them authority

Answer 3

1. Necessary and Proper Clause
2. Commerce Clause
3. Taxing and Spending Clause
4. Enforcement Provisions - limited powers of Congress to create law that enforce the 13th, 14th, and 15th Amendment

Question 4

State Plenary Police Power

Answer 4

Power to legislate for health, safety, welfare, and morals (HSWM) not expressly given to the Federal government

Question 5

Amendment 10

Answer 5

If not given to the federal government, the it is retained by the states

Question 6

Necessary and Proper clause (Art 1, Sec 8)

Answer 6

• Makes all laws which shall be “necessary and proper” for carrying into execution the powers vested by the constitution - implied that Congress has power to choose and enact the means to perform the duties imposes upon it.
• It is not an independent source of power but itself unless it carries into effect other enumerated powers

Question 7

McCullough v. Maryland

Answer 7

• Supreme Court defines scope of Congress’s power and relationship between fed and state.
• N&P is what is “convenient or useful”- let the end be legitmate so long as they are not prohbited. (expansive)
• Rule: Congress given the power to enact any legislation necessary and proper to execute any authority granted to branch of the Fed govt

Question 8

US v. Comstock

Answer 8

Guidance as to weight of relevancy to “necessary and proper” analysis:

1. Breadth of Necessary and Proper Clause
2. History of Federal involvement in this area
3. Sound federal policy, ex: federal custody responsibility
4. Federal accomodation of state interest
5. Narrow scope of statute

Question 9

Commerce Clause (Art 1, Sec 8)

Answer 9

• The Congress shall have the power…to regulate Commerce with foreign Nations, and amoug the several States, and with the Indian tribes…”
• The commerce clause allows Congress to regulate commerce among the several states
• Because commerce touches upon so many areas of life, Congress’s CC authority is the most frequently used.
• In accordance with the holding in Gibbons, many of the early cases used various criteria to restrict the power of Congress to regulate.
• Today, Congress can regulate “channels” of interestate commerce (highways, waterways, and airtraffic), instrumentalities of interstate commerce (cars, trucks, ships, airplanes, etc) and activities that “substantially affect” interstate commerce.

Question 10

Commerce Clause Eras

Answer 10

• Initial Era (early ameria - 1890s): Commerce ewas broadly defined but minimally used.
• 2nd Era (1890 - 1937): commerce clause was narrowly defined and used the 10th Amendment as a limit.
• 3rd Era (1937-1990s): commerce clause was broadly defined and refused to apply 10th amendment as a limit.
• Present Era/ Modern View (1990s - present): Commerce clause was narrowly defined and revived the 10th amendment as an independent, judicially enforceable limit on federal actions.

Question 11

Questions to ask in every era

Answer 11

1. What is “commerce”
2. What does “among the several states” mean
3. What is the impact of the Tenth Amendment?

Question 12

Initial Era (early america - 1890s)

Answer 12

-Commerce was broadly defined but minimally used
-Gibbons v. Ogden
1. What is commerce
h-Marshall: commerce intercourse generally (all stages)
2. What does “among the states” mean?
-Concerns more than one state
-Marshall: all that touches interstate commerce (intermingles with movement between the states)
3. What is the impact of the Tenth Amendment
-Expansive notion - not a lot of legislation that is infringed during this era.
-Marshall: “It states but a truism” - just a reminder- nothing new in the 10th amendment that is already there.

Question 13

2nd Era (1890 -1937)

Answer 13

• Commerce Power was narrowly defined and used the 10th Amendment as a limit.
• Industrial revolution led Congress to use Commerce Clause much more (Sherman Act and Interstate Commerce Act)
• “Commerce” - buying and selling transactions only
• “among the states” ‘ direct effects on buy/sell moments only
• Tenth Amendment - police power as fundamental carve out (exclusive zone)

Question 14

2nd Era: US v. EC Knight (sugar monopoly case)

Answer 14

1. What is commerce?
   - Court narrowly defined commerce
   - Power to control manufacturing is secondary and incidental to the power to control commerce
   - Manufacturing along comes up if transported to ultimate user, everything else is “stream of commerce”
2. What does “among the several states” mean?
   - Court applied a restrictive conception
3. What is the impact of 10th Amendment?
   - Held that Congress violated the 10th when it regulated matters left to state governments.

Question 15

2n Era: ALA Poultry Corp v US

Answer 15

• Facts: live poultry code established min wage, child labor laws and unions rights by the National Industrial Recovery Act. SCOTUS struck down the code
• “among the states” - only buy and sell at the end is the moment that matters for ISC. D purchases chicks arriving from ISC, his activities are totally intrastate. Fed regulation not automatic since chicks in ISC.
• 10th Amendment enforceable has two views:
  1) 10th amendments is not a separate constraint but simply a reminder that Congress only may legislate if it has authority under the Constitution. Fed law would be con but invalidated b/c it violates Art 1 power.
  2) 10th Amendment protects state sovereignty from federal intrusion. Reserves a zone of activity for their exclusive control, intrusion is uncon.

Question 16

2nd Era: Hammer v. Dagenhart:

Answer 16

• Fed passes law prohibiting the shipment of any product produded by child labor
• SCOTUS says this is in zone of activites where states reg health, safety, welfare and morals. Held: uncon law.

Question 17

CC 3rd Era: 1937-1990

Answer 17

• Commerce power was broadly defined and refused to apply 10th Amendment as a limit
• Great Depression triggered a new era of Supreme Court reasoning, not one federal law was declared uncon, exceeding CC power scope.
• 1) Commerce= all stages of/relate to commercial transactions
• 2) Among the states= congress could rationally believe it may substantially effect.
• 3) 10th Amendment= states but a truism

Question 18

3E: NLRB v. Laughlin Steel Corp

Answer 18

• “Affecting Commerce” = defined as burdening or obstructing commerce. Or the free flow of commerce having led to all of that
• Reexpanded commerce to the flow of commercial activity

Question 19

3E Wickard Wheat Farm

Answer 19

• Agricultural Adjustment Act of 1938: controlled volume moving interstate to avoid surpluses and shortages of the consequent abnormally low or high wheat prices and obstruction of commerce
• Commerce includes all state of biz
• No longer requires a direct effect; indirect effect through aggregating supply and demand. If one person does something, how would ISC be affected if everyone did the same.

Question 20

3E: Heart of Atlanta

Answer 20

• Supreme Court said Civil Rights Act prohibitng racial discrimination in motels was constitutional b/c motel service reaches ISC due to the large number of interstate clients served.
• Congress possibly legislating on moral rather than economic motivations isnt an issue. As long as valid commercial activity exists, moral concerns are irrelevant.

Question 21

3E US v. Darby

Answer 21

• 10th Amendment pretty much discarded since Congress broadly reaches anything that is necessary and proper through the CC.

Question 22

Present Era/ Modern View (1990s-Now)

Answer 22

• Commerce power narrowly defined. 10th Amendment revived as an independent judicially enforceable limit on federal action
• Supreme Court changed course again in this era with Lopez - the court found that the federal law exceeded Congress’s Commerce Clause Authority, this case later led to challenges of dozens of federal laws.

Question 23

PE: US v Lopez

Answer 23

• D was convicted under the Gun Free School Zones Act
• Held: Commerce Clause regulatory powers were exceeded
• A law passed under CC is valid if it falls under of the these:
  (1) uses of a channel of interstate commerce (or)
  ==Rules of how things move. Ex: increase safety in the use of highways
  (2) an instrumentality (or thing or persons) of ISC
  ==Thew what- the thing that actually moves in ISC. Usually a direct connection, ex: instrum=train.
  (3) an activity substantially effecting ISC
  ==if they can regulate thing, they can basically regulate anything.

Carrying a gun at school didn’t fall within the three categories. Gun possession itself is neither commercial or an activity that substantially affects ISC, since there is no jx nexus connecting gun possession to ISC expressed in the statute’s language.

Question 24

PE: US v Morrison

Answer 24

• FActs: P brought suit against 2 men alleging sexual assault
• Held: CC regulations of Intrastate activity may be upheld only where the activity being regulated is economic in nature. Gender motivated crimes are not economic activities, and will not sustain constitutionality under CC legislation
• Only aggregate small effects, if its economic in nature

Question 25

PE: Gonzales v. Raich

Answer 25

• Facts- CA law permitted individuals to grow weed for med purposes
• Congress may regulate local econ activity that substantially affects ISC. Aggregated the use. The weed doesnt have to, itself, be commercial, but the high demand can draw it into ISC. Economic because Schedule 1 drug that is very high in demand and can shift the market.

Question 26

Comprehensive Regulation

Answer 26

Big pieces of legislation are economic in and of themselve. Will allow certain parts that reach Intrastate activity to come together b/c of connection

Question 27

PE: NY v US (10 amendment issue)

Answer 27

• Facts: waste sites to dispose radiation act had a provision stating that any state not in compliance had to take title of waste or be held liable.
• Fed govt may not order a state govt to enact particular legislation. It may provide incentives for states to regulate a certain way be tying in to funding or giving the state’s a choice between enacting a federal plan or be pre-empted by federal law.
• Provision- found coercive and act infringes upon state soveriengty. Under 10th Amendment, it is un constitutional for a state to consent for the soveriengty to be taken away.

Question 28

PE: Printz v. US

Answer 28

• Fed may neither issue directives requiring states to address particular problems, nor command the states’ officers or those of their political subdivision, to administer or enforce a fed regulatory program.
• Fed cannot make state do actions

Question 29

Taxing and Spending Power

Answer 29

• Art 1, Sec 8 provides that “ Congress shall have power to lay and collect taxes, duties, imposts, and excises.”
• Power subject to 3 limitiations:
  1) Uniformity Limitation:
  ==Art 1, Sec 8 requires that all duties, imposts, and excises, (ie all taxes that are “indirect”, meaning they’re imposed on someone other that the person who ultimately bears the burden of the tax) must be uniform throughout the US
  ==Uniformity means geographical uniformity. As long as the tax is geographically uniform, it will be sustained, even though it isn’t intrinsically uniform (i.e. multiple tax rates)
  2) Direct Tax Limitation
  ==A direct tax is usually one imposed directly against property or one imposed against the person who is ultimately responsible for the tax burden. All “direct” taxes must be apportioned among the several states so that each state’s share of the total tax burden is proportional to the state’s share of the national population.
  3) Export Tax Limitation:
  ==To qualify as an export, the goods must be “in channels of transportation bound for a foreign country”.

Congress can write laws that use federal funds to raise revenues (and its okay if they regulate too)

Question 30

Scope of Tax and Spend Clause

Answer 30

• Interpret narrowly- only the enumerate powers in the constitution is where congress is allowed to tax and spend.
• (Hamilton) Broad - Tax and spend for anything that is for the general welfare. Whatever is beneficial for the US
  ==Doesn’t have to be tied to an enumerated power, just for general welfare.
  -Supreme Court ruled that Congress may place strings on grants, so long as the conditions are expressly stated and so long as they have some relationship to the purpose of the spending power.

Question 31

Spending Power

Answer 31

Art 1, Sec 8, Clause 1: “Congress shall have power to law and collect taxes… to pay the debts and provide for the common defense and general welfare of the US”

Question 32

US v. Butler (1936)

Answer 32

• Held: Congress may not under the pretext of excercising the taxing power, accomplish prohibited ends, such as the regulations of matters purely of state concern and clearly beyond its national limits.
• The General Welfare Clause - The court construed the general welfare clause as a limitation on Congress’s tax and spending power and not as an independent source of Congressional power.
  ==promoting the nation’s welfare is one of the purposes for which Congress can impose taxes and spend money, But the fact that a measure would promote general welfare of the US is not a sufficient basis for fed govt action.

Question 33

T&S: Sabri v. United States(2004)

Answer 33

10th Amendment does not limit spending. So long as the fed govt is acting within its legitimate authority under the Necessary and proper clause, a connection is not required.

Question 34

T&S: South Dakota v. Dole (1987)

Answer 34

• Rule: By exercising its spending power, Congress can require states/local governments to comply with specified condition in order to qualify for federal funds/grants
• FActs: Court rejected South Dakota’s 10th and 21st amendment arguments and upheld Congress’s action of witholding federal highway funds from states permitting the purchase of alcoholic beverages by individuals under age 21.
• Cant be overy coercive, can’t withhold too much funds.
• Four Requirements for congressional law to be valid:
  1) it must be a law for the general welfare
  2) the terms of the money must be clearly communicated to the states (terms have to be unambiguously states so that the state know which kind of decision to make)
  3) the funds must be related to the activity being regulated
  4) level of funds must not raise to level of coercion
  =Over money, percentage held, and percentage of overall budget that is withheld.

Question 35

Enforcement Provisions

Answer 35

• Congress’s power under the Post civil war amendments (3 added: 13, prohibiting slavery; 14 - life, liberty, due process, privilege and immunity clause, equal protection; 15-right to vote.
• Congress may prohibit private racial discrimination under the 13th.

Question 36

United States v Morrison (2000)

Answer 36

• the “aggregation” doctrine under Wickard applies only to economic activities. In other words, where Congress seeks to regulate conduct that is not economic or commercial in nature, it cannnot rely on the conduct’s aggregate effect on interstate commerce.
• Facts/Holding: Court rejected that the Violence Against Women Act could be sustained if assaults on woment have an aggregate impact on ISC that is substantial

Question 37

EP: Katzenbach v. Morgan (1966)

Answer 37

• Scope of power is expansive - voting rights act
• Two views as to the scope of congress’s power with post civil war amendments:
  1) Narrow= argues that Congress only has authority to prevent or provide remedies for violations of rights recognized by the Supreme Court
  2) Broad=argues that Congress has authority to interpret the 14th Amendment to expand the scope of rights or even create new ones.
  ==Difference between the two is debate over what it means to enforce the amendment by appropriate legistaltion (narrow argues creating new rights isn’t legislating)
• Facts - Voting rights act had provisions prohibiting restrictions on the right to vote based on ability to read and write English. (NY law)
• Held - SC held that a fed statute enacted pursuant to the enabling clause of the 14th amendment supersedes any state constitutional or statutory provision that is in conflict with federal law. Congress created a new right to achieve civil rights even if a state is trying to deny them.
• Congress can write substantive laws that create substantive rights so long as they come out of a constitution or an amendment with an enforcement clause. ( In 2012, Congress can only remedy though)

Question 38

City of Boerne v. Flores

Answer 38

-Facts - Religion said they smoked peyote. Congress passed an act prohibiting a gov from substantially burdening a person’s religion unless the gov had a compelling interest and is using the least restrictive means.
- A neutral law is constitutionally valid
- Held: Congress can only provide remedies of violations ID’d by courts - Congress can’t ID remedies before the courts do
-Court can only remedy rights, not create clauses
-