Legislative Power Flashcards
What power does the Necessary and Proper clause give Congress?
Power to make any laws necessary and proper for carrying out any of its enumerated powers in Const. Does not confer power on its own.
In what cases does Congress have general police power?
Generally there is no federal police power, except over DC, federal lands, military bases, and Indian reserves.
What are Congresses enumerated powers?
- taxing/spending
- commerce
- war
- property
- bankruptcy
- postal
- citizenship
- admiralty
- coin money, fix weights/measurements
- patent/copyright
- powers from amendments (e.g. 14th)
What may Congress do under the spending power? What conditions must be met for an exercise of the spending power to be valid?
Under the spending power, Congress may imposed conditions on grants of money to local/state govts. (i.e. strings attached).
In order for an exercise of spending power to be valid, it must
(a) clearly state the conditions
(b) relate to the purpose of the program
(c) not be unduly coercive (i.e., does the state have a true choice?)
(d) not violate the Const in other ways
What does the taxing power allow Congress to do? When will a tax be invalidated?
Taxing power allows Congress to tax as long as the tax bears from reasonable relationship to revenue production or promoting the general welfare.
Taxes are invalid if they function as penalties, i.e. if it seeks to compel rather than merely influence behavior.
What does the Commerce Clause allow Congress to do? What three types of things can Congress regulate under the Commerce Clause?
Commerce Clause gives Congress the power to regulate all foreign and interstate commerce, and commerce with Indian tribes.
Under the clause, Congress may ONLY regulate the following:
(a) channels of interstate commerce (e.g. roads, telephone lines, internet)
(b) instrumentalities of interstate commerce (e.g. trucks, people)
(c) activities that have a substantial effect on interstate commerce (e.g. all hotels in state)
When may Congress regulate intrastate activity - i.e. activity that occurs solely within a state?
Under its Commerce Clause power, Congress may regulate intrastate activity if there is a rational basis to believe that that activity– in the aggregate–has a substantial effect on interstate commerce. (e.g. discrimination at hotels in state)
EXCEPT if the activity is noneconomic and falls within a category traditionally regulated by the state (e.g., criminalizing domestic violence).
Note: Congress can not compel activity, only regulate existing activity.
Under which power can Congress regulate private discrimination? (Not public)
Generally, the commerce clause
What are Congress’s war-related powers?
- declare war
- raise & support army
- provide for/maintain navy
When can Congress delegate legislative power to the executive or judicial branch?
As long as intelligible standards for the power are set and the power is not uniquely confined to congress (e.g. impeachment, declare war).
Note: it’s basically impossible to fail the “intelligible standards” test.
What are the two Constitutional requirements for Congress to pass a law?
Bicameralism (passed by both houses) + presentment (to pres)
What are the two types of vetoes not allowed?
- line item veto (i.e., when Pres can cancel/approve bills in part rather than in whole)
- legislative veto (way around bicameralism/presentment - e.g., allowing one house of Congress to overturn)
