Federalism foundations and legislative power

Question 1

Legislative & Executive Powers Early Foundations

Answer 1

1. Executive has power to remove officials – implicit power
2. Congress creates First Bank (McCulloch v. Maryland)
   * can use Necessary and Proper Clause with other expressed powers to make law
   * Constitution is blueprint, not the full extent of national governmental powers
   * Establishes Ends / Means Test (Modern Necessary & Proper Clause)
    Identify expressed Congressional power
3. Necessary if: Adapted to the end AND Useful to achieving that end
4. Proper if:
   a. Not prohibited by Constitution
   b. Within letter and spirit of the Constitution
   i. Does NOT create unlimited power in Congress
5. Supremacy Clause –
6. Establishes federal law supreme over the States (preemption)
7. States power cannot burden or impede explicit Congressional power

Question 2

Mcculloch v. Maryland ends/ means test for N& P clause

Answer 2

No power listed to charter corp. or bank, but:

lay and collect taxes

borrow money

regulate commerce

declare and conduct war

raise and support armies

Means

adapted

not prohibited

within letter & spirt of Const

End

Legitimate & w/in Constitution

Identify legitimate constitutional end–power granted by Const.

Necessary–adapted to the end; useful to achieving that end

Proper–not prohibited by the Constitution

–within letter & spirt of Const.

Question 3

Federalism Foundations

Answer 3

 Constitutional Text / Structure
* Horizontal separation b/t legislative, judicial and
Executive
* Vertically b/t Federal government and the states
Separation of Powers
* Federal Government
o Structural – Article I (Congress), Article II (Executive), Article
III (Judicial)
o Not explicit in Constitution
* Federal Govt. and States
o 10th Amendment

Question 4

Congress’ Expressed Powers
(Art. I, Section 8)

Answer 4

1.Taxing Power
2.Spending Power
3.Borrow money
4.Regulate commerce among the states, w/ foreign nations and with
Indian tribes
5.Establish regulations governing naturalization and bankruptcy
6.Coin and regulate currency
7.Establish post offices and roads
8.Grant patents and copyrights
9.Create lower federal courts
10.Declare war and support army, navy and militia
11.Govern D.C. and all federal conclaves and establishments
12.Make all laws necessary and proper ….

Question 5

Executive Powers – Expressed
(Article II)

Answer 5

1.Vests Executive power in President
2.Role as commander in chief
3.Power to grant pardons
4.Power to make treaties
5.Appoint officials
6.Fill Vacancies
7.Recommend legislation deemed necessary and
expedient
8.Take Care Laws be Faithfully Executed

Question 6

Judicial Power– Expressed (Article
III) / Branch Checks & Balances)

Answer 6

Separation of Powers creates checks and balances on other two
branches of federal government
 Passing legislation
1. Concurrence of both houses of Congress AND either:
a. Approval or President OR
b. Super majority of Congress to override veto (2/3)
2. Treaties
1. Negotiated by President
2. Advice and consent of 2/3 of Senate
3. Law
3. Executive enforces
4. Judicial resolves law disputes

Question 7

Commerce Power - Early
Foundations

Answer 7

1. Commerce includes:
2. Traffic between nations
3. Buying and selling goods
4. Interchange of commodities
5. Navigation to regulate intercourse between states (Gibbons)
6. Dual Federalism (1800’s – Great Depression)
   * National-local distinction between federal government and states (not
   used anymore)
   * Strictly limited federal government to explicit powers
7. Federal could only regulate if:
8. Regulating goods traveling in interstate market AND
9. Regulations had a direct effect on interstate market

Question 8

Commerce Power – Federal
Expansion after New Deal

Answer 8

1. Aggregate Principle for Economic Activities in State (Wickard v. Filburn)
* Can Regulate if:
1. If activity exerts substantial economic effect on interstate commerce AND
2. Total aggregate effect on interstate commerce
Obliterates direct/indirect effect for power to regulate commerce
2. Regulate People in Commerce (Heart of Atlanta Motel)
1. Test is:
1. Whether commerce concerns more than one state AND
2. Has real, substantial and harmful effect on Interstate commerce
2. Power to:
1. Regulate people moving in commerce
2. Can regulate commerce activities of people in origin and destination states
3. Aggregate principle just needs to survive rational basis (who has the burden?)
**

Question 9

Executive Orders - Foundations (ebbs and power)

Answer 9

1. Steel Seizure Case: steel workers about to go on strike, so president seized control of the steel
mills because the produced military weapons. Determined “zones of authority” for Pres: the
power to issue an order must stem from act of Congress OR Constitution
1. Highest Ebb of authority is when President is authorized by Congress to act
1. Acts on express or implied authorization from Congress
2. Presumptively constitutional
2. Zone of Twilight: when President acts in the absence of Congressional denial of authority
(Congress hasn’t spoken or made its intent clear)
3. Lowest Ebb: is when Congress has disapproved or specifically said the President cannot
do something
1. Pres must show it’s something given to them by the Con and Congress doesn’t have
the authority to interfere
2. Presumptively unconstitutional
2. Historical gloss: systemic, unbroken practices and traditions can change the intersection
between Congressional authority and executive authority (must be Congressional
acquiescence over a long period of time)

Question 10

Modern National Legislative
Power – Commerce Power

Court’s modern approach to Interstate Commerce Clause authorizes Congress to
regulate based on three categories:

Answer 10

1. The use of channels of interstate commerce: roads, bridges, railroad tracks, air
   routes, telecommunications networks, etc
2. The instrumentalities of persons or things in interstate commerce: planes, trains, and
   automobiles
3. Those economic activities that have a substantial effect on interstate commerce:
   local activity may be regulated by Congress if it exerts a substantial economic effect
   on interstate commerce through its cumulate or aggregate effect OR is part of an
   interstate regulatory scheme
   side note There is a jx hook for govt to prove BRD that item traveled IC

Question 11

Commerce Power congress can regulate: Channels of Interstate Commerce

Answer 11

1. Channels of Interstate Commerce OR
   i) Routes which person and goods move from state to state
   ii) Railroad tracks, air routes, waters, comm networks, internet
   iii) Regulate to keep flow free from obstacles
   iv) Regulate to bar certain items traveling state to state

Question 12

Commerce Power congress can regulate: Instrumentalities

Answer 12

2. Instrumentalities of Interstate Commerce OR
   v) Modes or vehicles of commerce
   vi)Planes, trains, ships, trucks
   vii)Power to protect and regulate (even if threat arises from solely in-state activities)
    Those modes and multi state business entities
    People moving in IC
    Goods moving in IC

Question 13

Commerce Power congress can regulate: economic activities

Answer 13

3(a). Economic activities which have a substantial aggregate effect on interstate commerce OR
* Wickard – same person doing same economic activity
3(b). Intra-state Non-economic activity that: (Gonzales)
* Is an essential part of a larger economic activity
* Focus on the regulated activity itself, NOT circumstances surrounding
* Look for broad federal economic regulation and assess if the activity in question
relates to it
* Examples that did not Meet these criteria
* Lopez (law barring possession of a gun in school)
* Morrison (law regulating gender motivated violence)
* For both of these the activity itself was non-economic and there was no broader regulation
encompassing interstate commerce
**

Question 14

Modern National Legislative
Power – Taxing Powers

Answer 14

 Can prescribe taxes, duties, imposts, and excises for defense or
general welfare
 As long as it raises revenue, it’s a tax
 Generally, very broad power and only few limits
 Any direct taxes on people or property apportioned among the
state’s population (direct is real property, poll tax)
 Indirect taxes (all other taxes) (affecting conduct) must be uniform
 No taxes on state exports
 “penalty” = does not mean it is NOT a tax
 Rational basis

Question 15

Modern National Legislative
Power – Spending Power

Answer 15

Tax and Spend: Congress can attach conditions to grants of federal funds, if:
1. Spending general welfare

2. Conditions are unambiguous
3. Some attenuated relationship to federal program
4. No independent constitutional bar

side note Congress can cross the line by imposing coercive conditions,
vague or ambiguous conditions, or conditions wholly unrelated to the federal
program or violating of another independent constitutional provision – cannot
indirectly regulate something it doesn’t have power to regulate through a penalty
disguised as a tax

Question 16

Modern Legislative Power –
Necessary / Proper Clause

Answer 16

 Make all laws necessary and proper for carrying into execution
foregoing powers
 Must use with explicit Congressional power in Constitution-
usually by way of using conditional funding to states.
 Steps to Use N/P Clause
1) Identify enumerated Congressional Power (Tax, commerce)
2) Is it Necessary?
* Useful, convenient, appropriate
3) Is it proper?
* Not prohibited by Constitution
* Consistent w/ Letter and Spirit of Constitution
* Limits to Congress Power
* Can not be police power of states

Question 17

Two functions of Commerce Clause—

Answer 17

1. Affirmative grant of power to Congress to regulate
2. Negative/dormant authority precluding state and local laws unduly interfering with interstate commerce

Question 18

Gibbons v. Ogden

Answer 18

defined commerce and among the states

Commerce: commercial intercourse- not just buying and selling, but includes navigation