Federal Legislative Powers

Question 1

What are the main categories of congressional power?

Answer 1

1) Taxing/spending: Congress may tax/spend for the “general welfare” (this is NOT the power to promote the general welfare, sans taxing)
2) Commerce:

Congress can regulate commerce

(i) with foreign nations, 
(ii) indian tribes; AND 
(iii) among the states; 

Congress may regulate

(i) channels of interstate commerce
	- highways, waterways, the Internet
(ii) instrumentalities of interstate commerce 			
	- trucks, planes or phones
(iii) economicINTRAstateactivities that have a substantial (cumulative) affect on interstate commerce (NOTE: cumulative impact cannot be based on NON-economic activity)
(iv) non-economic INTRAstate activities where Congress can FACTUALLY SHOW a subtstantial economic effect on interstate commerce

3) §5 of 14A

4) Limited police powers: M-I-L-D
- Military
- Indian reservations
- Lands (federal)
- District of Columbia (D.C.)

5) Necessary & Proper Clause: Congress can adopt all laws that are necessary and proper to exercise its EXPRESS/IMPLIED authority (as per above)

Question 2

Can Congress compel state regulatory or legislative action?

Answer 2

NO!

Under the 10th Am (reserving to states powers that are not granted to the US), Congress CANNOT compel state regulatory or legislative action, BUT…

Congress CAN induce state government action by putting strings on grants(pursuant to Spending power), SO LONG AS the conditions are EXPRESSLY stated and RELATE to the purpose of the spending program

Congress may prohibit HARMFUL commercial activity by state governments (e.g. state’s can’t release personal information of patients)

Question 3

What legislative powers can Congress delegate (for example to an agency)?

Answer 3

ALMOST ANYTHING!(as long there is an intelligible principle)

EXAM TIP: the non-delegation answer is almost ALWAYS wrong

Question 4

When are legislative vetos and line item vetoes allowed?

Answer 4

NEVER! They are unconstitutional

Legislative veto: For Congress to act, there MUST be bicameralism (passage by both houses) AND presentment (veto/non-veto by POTUS)

Line-item veto: POTUS must sign or veto the bill in ITS ENTIRETY; NOT allowed to strike certain provisions

Question 5

Is Congress allowed to delegate Executive power to itself?

Answer 5

NO!

Congress can give its own power (delegation to agencies), BUT CAN NEVER take away power from another branch