Federal Regulation

Question 1

McCulloch v. Maryland

Answer 1

Congress’s powers are expanded beyond Art. I Sec. 8 under the Necessary and Proper Clause

Question 2

Is a congressional action allowed under the Necessary and Proper clause?

Answer 2

1) Identify a power under Art. I Sec. 8
2) Explain how the means is in furtherance of that power

Question 3

What can Congress use the Commerce Clause to regulate? (Lopez)

Answer 3

• Channels of interstate commerce (Darby)
• Instrumentalities of interstate commerce (Shreveport Rate cases)
• Activities having a substantial effect on interstate commerce (Jones & Laughlin)

Question 4

U.S. v. Darby

Answer 4

Congress may regulate intrastate commerce if it is necessary to effect an interstate commerce regulatory scheme, even if there is not a substantial effect (Fair Labor Standards Act)

Question 5

What is aggregation?

Answer 5

Congress can regulate all the small effects of individuals to find a substantial effect on interstate commerce substitution (Wickard)

Question 6

What is substitution?

Answer 6

Congress can regulate non-commercial activities that are a substitute for commercial activities (e.g., growing of wheat that could have been bought) (Wickard)

Question 7

United States v. Morrison

Answer 7

Congress cannot aggregate non-economic activity to determine whether they have a substantial effect on interstate commerce (Violence Against Women Act)

Question 8

What is meant by activities having a substantial effect on interstate commerce?

Answer 8

“Activities that may be intrastate in nature but have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect commerce from burdens and obstructions” (Jones & Laughlin)

Question 9

Sebelius (Commerce part)

Answer 9

• Forcing someone into commerce is not the regulation of commerce
• Congress gets to define the market being regulated

Question 10

McCray v. United States

Answer 10

Congress may use tax to deter activity (Margarine case)

Question 11

Gonzalez v. Raich

Answer 11

Congress may substitute non-economic activity for regulation whether or not some individuals are not going to enter a transaction

Question 12

What are the factors to determine if something is a tax and not a penalty? (Sebelius)

Answer 12

• Most important: Does it produce at least some revenue?
• Where is it in the statute?
• What does Congress call it?
• What does it look like?
• Who collects it?
• When do people pay it?
• Scienter requirement?
• Is it very high on individuals?

Question 13

United States v. Butler

Answer 13

“General welfare” spending is interpreted to limit to spending for “public purposes”

Question 14

When may Congress attach conditions to States’ receipt of federal funds?

Answer 14

• It does so unambiguously, thus enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation
• The conditions are related “to the federal interest in particular national projects or programs” (this might be a bar, is not dispositive)
• Other constitutional provisions may provide an independent bar
• Does not pass the point from pressure to compulsion

Question 15

What is the “clear statement” rule on conditional spending?

Answer 15

Congress cannot surprise participating States with post-acceptance or retroactive conditions (Sebelius)

Question 16

Missouri v. Holland

Answer 16

The Treaty Power expands Congress’s powers beyond those listed in Art. I Sec. 8

Question 17

Reid v. Covert

Answer 17

When the Treaty Power comes up against something that “really matters,” like a substantive right/constitutional violation, it is limited

Question 18

Bond v. United States

Answer 18

Any statute enacted to enforce treaty provisions domestically should match the purpose and justification of the treaty (Bond v. United States)