II. Federal Legislative Power

Question 1

Congress auithority to act

Answer 1

There must be express or implied Congressional power.
There is no general federal police power.

Congress has the police power when acting for the military, Indian reservations, federal lands and
Territories, and for the District of Columbia (MILD)

Question 2

Necessary and proper clause

Answer 2

Congress may take any action not prohibited by the Constitution to carry out its powers.

Question 3

Taxing power/spending power and the commerce power

Answer 3

Taxing and spending power

1. Congress may tax and spend for the general welfare.
2. Congress may enact any tax to raise revenue on any program to spend it that it believes will serve the general welfare

The Commerce Power

1. Congress may regulate the channels of interstate commerce (Such as roads, waterways, the internet)
2. Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
3. Congress may regulate economic activities that have a substantial effect on interstate commerce. (In the area of non-economic activity, a substantial effect cannot be based on cumulative impact.) Also, five justices have said that Congress cannot regulate inactivity.

Question 4

The 10th Amendment as a limit on Congressional powers

Answer 4

The 10th Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.

1. Congress cannot compel state regulatory or legislative action. Note: Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program. Also, the conditions cannot be unduly coercive.
2. Congress may prohibit harmful commercial activity by state govs

Question 5

Congress’ power under section 5 of the 14th Amendment.

Answer 5

Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by the courts
and such laws must be “proportionate” and “congruent” to remedying constitutional violations

Question 6

Delegation of powers

Answer 6

1. No limit exists on Congress’ ability to delegate legislative power to executive agencies or even to the judiciary. No delegation has been invalidated since 1937
2. Legislative vetos and line-item vetos are unconstitutional. For Congress
   to act, there always must be bicameralism (passage by both the House and
   the Senate) and presentment (giving the bill to the President and sign or
   veto). The President must sign or veto the bill in its entirety.
   
   1. Legislative veto is Congress attempting to overturn an Executive action
      Without bicameral or presentment
   2. Line item veto is President attempting to veto part of a bill while signing
      the rest into law
3. Congress may not delegate executive power to itself or its officers