Legislative Power

Question 1

Under the commerce clause, what are the three categories of commerce?

Answer 1

CIA:
1) Channels of interstate commerce
2) Instrumentalities of interstate commerce
3) Activities affecting interstate commerce
+ The current mode is Substantial Effect BUT Court still allows for aggregation
+ Anything that crosses state lines [channels of interstate travel]; activities affecting state commerce

Question 2

True or false: Tax and Spending is enumerated in the Articles of Confederation

Answer 2

False. Articles of Confederation: No taxing and spending powers included

Article I, §8: Taxing & Spending Power. Didn’t get much action until the 1930s within context of the Great Depression. A very broad and capacious power to Congress

Question 3

What is the difference in Congress’ taxing/spending power between direct and indirect taxes?

Answer 3

Direct Taxes: Must be apportioned to the states

Indirect Taxes: For general welfare and uniform throughout the country

Question 4

True or false: The Constitution separates declaration of war powers between the judiciary and Congress

Answer 4

1/2 true, 1/2 false

Congress and the President share war powers
+ Seems that the drafters intended for a struggle of power over the war powers to exist between the Executive and Legislative Branches of government
+ Requiring legislative deliberation to clog war and prevent us from hurrying into war

Question 5

What are the post-Civil War Constitutional amendments and what do they say?

Answer 5

13th Amendment: no slavery §2 power for Congress to enforce through legislation

14th Amendment: Citizenship, no abridgment by States of citizens’ rights & immunities. Due process and equal protection of law; §5 power for Congress to enforce through legislation.

15th Amendment: No voter discrimination based on race/color/past enslavement and Congressional power to enforce through legislation

Question 6

Can the 14th Amendment regulate private conduct?

Answer 6

NO.

Morrison: Private party conduct is not within the province of 14th amendment

Question 7

Where do Congressional limits on state power derive from?

Answer 7

Limits on state power derive from the Supremacy Clause

Two ways to invalidate state law: Congress has the power

1) Congress has acted and preempts (Supreme Law of the Land)
+ Trigger: Is there a federal law on point and a conflicting state law
+ Question: What is the state law or regulation doing?

2) Congress has not acted but law can be challenged by invoking
+ Dormant Commerce Clause OR
+ Privileges and Immunities Clause

Question 8

What are the differences between implied and express preemption?

Answer 8

Express v. Implied Preemption
+ For both, congressional intent is key
+ Ask: Did Congress intend to preempt state law?

Question 9

What are the three categories of implied preemption

Answer 9

1) Field preemption: Does Congress’ regulatory scheme manifest an intent to be providing the entire array of laws within a particular field?

2) Actual Conflict Preemption: federal and state laws are mutually exclusive such that it would be physically impossible to comply with both

3) Obstacle/Federal Objective preemption is a purpose to displace even more fed laws?

Question 10

Generally, does the Court rely on the broad or narrow view of preemption?

Answer 10

Court has taken the broad view: a whole bunch of areas exist where Congress has successfully pre-empted state law

Broad: states shafted

Narrow: feds shafted

Question 11

What is the primary difference between the Commerce Clause and Dormant Commerce Clause?

Answer 11

Commerce Clause (Fed against States)
Dormant Commerce Clause (States against States)

Question 12

Since we have both pre-emption + Supremacy Clause plus Congress’ Commerce Clause power, why do we need the Dormant Commerce Clause at all?

Answer 12

DCC operates when Congress has not acted

Question 13

Where in the Constitution is the Dormant Commerce Clause mentioned?

Answer 13

No actual clause in the Constitution that says this

The Dormant Commerce Clause has been inferred by the Court from Art. I §8: “That the commerce clause, by its own force and without national legislation, puts it into the power of the Court to place limits on state authority”

Question 14

What does the Privileges and Immunities clause say?

Answer 14

Privileges and Immunities Clause: Unifying States into a National Entity

Art. IV §2: “The Citizens of each State shall be entitled to all the privileges and immunities of Citizens in the several states”
+ Court interprets as a limit on States’ power to discriminate against out-of-staters regarding constitutional rights and important economic activities especially the ability to earn a living
+ Requires discrimination against citizens of other states
+ Limited to individuals, not corporations
+ Limited to US Citizens

Question 15

What are the differences between DCC and P&I?

Answer 15

DCC
+ Corporations and Individuals and aliens
+ Challenge state and local law, regardless if they discriminate against out of staters
+ MUST have commercial activity
+ Commerce is the priority
+ Maine v. Taylor survives strict analysis for DCC laws
+ Congressional and Market Participants

P&I
+ Individuals only
+ Challenge discrimination against out of staters only
+ Must be facially discriminatory (cannot rely on discriminatory effects
+ Unifying the several states, subset of rights and benefits
+ No cases prevailed
+ No exceptions

Question 16

In what types of cases has P&I been applied?

Answer 16

+ Commerce, taxes, and professions
+ Constitutional rights are at stake, but rare
+ Important economic activities are at stake
+ Court has refused to apply P&I in other situations

Question 17

Can the federal government do anything it likes?

Answer 17

In theory, no, but in practice, the federal government can do quite a bit, as long as its actions doesn’t interfere with individual rights

Question 18

What are the three WRONG ANSWERS to an MBE question which gives a federal statute and asks for the strongest argument for Congress passing the statute

Answer 18

1) Promoting general welfare - not a Congressional power, it’s mentioned in the preamble of the Constitution

2) General Police Power

3) Necessary and Proper is not a free standing power of Congress, works only to add on to other legislative powers

Question 19

What are the three big powers that Congress DOES have?

Answer 19

1) Taxing
2) Spending
3) Commerce
*when in doubt, pick the commerce clause

Question 20

Congress can regulate… through the commerce power?

Answer 20

CIA
C = Channels of interstate commerce
I = Instrumentalities of interstate commerce
A = intrastate Activities with a substantial effect on interstate commerce

Question 21

How is the substantial effect determined under the commerce power?

Answer 21

Substantial = aggregate

Whether the aggregate activity of everyone doing the same thing substantially affects interstate commerce = almost always yes

Question 22

For non-economic, non-commercial activity, what is the ONLY way for Congress to regulate interstate actions?

Answer 22

Express findings, demonstrating a substantial effect on interstate commerce.

Congress CANNOT regulate purely intrastate, non-commercial, non-economic activity for which a substantial effect on interstate commerce has not been shown

Question 23

What are two case examples where an activity in the aggregate had a substantial effect on interstate commerce?

Answer 23

Wickard v. Filburn = wheat growing

Gonzalez v. Raich = marijuana

Question 24

What are two cases where an activity in the aggregate was NOT determined economic or commercial in nature?

Answer 24

US v. Lopez = gun laws near schools

US v. Morrison = gender motivated violence

Question 25

What is the test used to determine if Congressional tax is constitutional?

Answer 25

The tax need only be rationally related to raising revenue.

Question 26

Can Congress introduce a tax to prohibit an activity?

Answer 26

Yes

Question 27

How was the 2012 Affordable Care Act case a representation of how Congress may exercise its taxing power?

Answer 27

The individual mandate not sustained as a regulation of interstate commerce, but it was held to be valid under the taxing power.

The individual who chooses not insurance must pay a tax, and the taxing power supports anything that is rationally related to raising revenue.

Question 28

Congress’ spending power includes spending for the…?

Answer 28

General welfare.

Question 29

True or false: Congress can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce Clause

Answer 29

True

Ex: South Dakota v. Dole

If states wanted to receive federal highway funds, they had to raise their drinking age to a minimum of 21 years of age.

Question 30

True or false: Congress can force states to adopt or enforce regulatory programs.

Answer 30

False.

Ex: Brady gun control act

Required background checks for people wanting to purchse firearms and it required states and local law enforcement carry out those background checks –> unconstitutional.

Question 31

What CAN congress do to enforce regulatory programs?

Answer 31

Bribe the states through spending power

Adopt its own regulatory program and enforce it with federal officers

Question 32

What war and defense powers does Congress have?

Answer 32

1) Power to declare war
2) Maintain Army and Navy
3) Provide military discipline of US personnel
4) Military trial of enemy combatants/citizens

Question 33

Can Congress provide for military trials of US citizens who are civilians?

Answer 33

NO!

Question 34

What does the 13th Amendment say?

Answer 34

Congress has broad power to legislate against racial discrimination, whether public or private

Question 35

What powers does the 14th Amendment give to Congress?

Answer 35

Congress has the power to remedy violations of individual rights by the government

BUT ONLY rights identified by the court

Question 36

What does it mean to say that remedial legislation must have “congruence” and “proportionality?”

Answer 36

There has to be a reasonable fit b/t remedial law enacted by Congress and the constitutional right as defined by SCOTUS

Question 37

How was RFRA an example of remedial legislation and improper fit?

Answer 37

The Supreme Court struck down RFRA, as it went beyond federal legislative power, because it was not really remedial

Instead, RFRA was an attempt to overturn the decision in Smith v. Employment Division

Question 38

What power does the 15th Amendment give Congress?

Answer 38

Congress has the power to ensure there is no racial discrimination in voting.

Remember that such acts are generally valid as to Congress, but invalid as applied to the states and localities.