Federalism Flashcards
federalism
is a boundary dispute doctrine
division of power between autonomous govts of states and collective fed gvt
states have own powers and sphere of authority
powers of nat gov are specifically enumerated, and thus limited. all other powers belong to the states
police power
power to pursue that which is to public health, safety, and welfare
states have general police power, Congress does not
Congress can only reach as far as one of its enumerated powers plus the N/P clause can reach
necessary and proper clause
attaches to and amplifies all other constitutional powers
fed gov has enumerated/implied powers - a smaller right related to a greater right and included with it, even if not expressed
- the grant of one power includes other powers that are incident to it
ends must be within scope of C –> must use means that are adaptive
justification - this particular act by Congress is a N/P means of exercising their enumerated powers
commerce clause
Congress has the power to regulate commerce with foreign nations and among the states
regulation includes the power to prohibit certain products/services from being in the stream of IC
regulation must be economic/commercial in nature
limits on interstate commerce
- cannot regulate production/manufacturing, just movement/transportation and sale
- can only regulate while in stream (not before enters or after exits)
- can only regulate things that DIRECTLY impact commerce (not those w/only an indirect impact)m
Congress may only regulate three broad categories of activities:
- stream itself –> facilitators
- instrumentalities (items/persons used to effectuate commerce; must be physical/virtual)
- substantially relates to/affects IC
NLRB v. Jones
set the stage for SC’s deferential treatment of commerce power
held that Congress can regulate any intrastate activity with a close/substantial relation to IC
control is essential to protect commerce from burdens/obstructions
includes local activities as long as relate
taxing power - Congress has power to tax, but C places certain limits
must always be for the general welfare
- if direct tax –> must be apportioned among the states
- if non-direct tax –> uniform to the states
income tax does not have to be apportioned, but does have to be uniform t/o states
Congress may tax beyond what they can regulate as long as it is a true tax (not a penalty)
other limits on taxing power
political: consider what “we the people” can bear
judicial:
1. must produce or be likely to produce revenue
2. cannot be a penalty disguised as a tax if Congress could not regulate the taxed activities
3. cannot spend money in pursuit of unC’al ends
4. must be for common defense and general welfare
conditional spending - Congress may attach conditions on who can receive the money
- must be for general welfare
- unambiguous conditions
- related to a federal interest
- no independent C’al bar
- cannot be coercive
**coercion/commandeering: Congress cannot take so much money that the state wouldn’t really have a choice b/c has a significant impact on the state budget. decision must rest w the state
self-executing treaty
will have immediate domestic effect upon ratification (changes US law)
non-self-executing treaty
has no effect unless/until Congress passes leg that changes US law to be in accordance w the treaty
opportunity for Congress to pass leg they couldn’t before
Pres memo cannot make a NSE treaty into a SE one –> that power rests w Congress and they haven’t done so
