Federal Legislative Powers, Article 1

Question 1

Powers that Congress Lacks

Answer 1

Congress generally lacks Federal Policing Power

For Congress to act, there must be implied or expressed power in the Constitution.

Congress can only do what is authorized

Question 2

Necessary and Proper Clause

Answer 2

Article 1, Section 8

Congress can take all acts that are necessary and proper to carry out its authority. –McCullough v. Maryland

Question 3

Setting up a Necessary and Proper Clause in a test

Answer 3

“Nothing in the Constitution gives Congress the power to implement a national bake sale to raise funds, but if instituting a national bake sale as a means not prohibited by the Constitution so as to be able to raise an Army and Navy”

Question 4

Taxing/Spending Power

Answer 4

Congress may tax and spend for the general welfare.

Question 5

Commerce Clause

Answer 5

Article 1, Section 8

Congress can regulate commerce with foreign nations, with indian tribes and among the states.

Question 6

Commerce Clause Rule of Three– cite U.S. v. Lopez

Answer 6

1) Channels–highways, waterways, internet
2) Instrumentality, persons/things in interstate commerce –trucks, planes, phones, interent, radio waves, electricity, insurance, people who cross state lines –Gibbons v. Ogden
3) Activities that have substantial affect on interstate commerce
- - Wickard v. Filburn (wheat) –Cumulative Effect
- -Gonzales v. Raich (Economic effect)…
- -cannot regulate NON-Economic activity by finding that the cumulative impact creates the substantial effect. –U.S. v. Morrison (Congress says violence against women hurts commerce–struck down as unconstitutional)

Question 7

10th Amendment

Answer 7

• -Congress cannot compel state legislative or regulatory activity N.Y. v. U.S. (radioactive waste)
• -But, Congress can induce state gov’t to act by placing “strings” on grant money, so long as they are rationally related.
• -Congress may prohibit harmful commercial activity by state gov’ts.

Question 8

Powers under 14th Amendment, Section 5

Answer 8

Authorizes Congress to enforce the 14th Amendment.

• -Congress cannot create new rights or expand the scope of rights
• -Congress may only act to prevent or remedy violations of rights already recognized by the courts. “Narrowly tailored, proportionate and congruent.”