Legislative Power Flashcards
ENUMERATED AND IMPLIED POWERS
- Constit grants Congress specific powers enumerated in Art 1 Sect 3 & auxiliary power under Necessary & Proper Clause.
Necessary and Proper “Power”
- Grants Congress power to make all laws necessary & proper (i.e., appropriate) for execution of any power granted to any branch
Note on NPC
- Not itself a basis of power; it merely gives Congress power to execute specifically granted powers.
- Thus, if question asks what is best source of power for a particular act of Congress, answer should not be NPC, standing alone.
NPC Limit
Congress cannot adopt a law that is expressly prohibited by another Constit provision
Taxing Power
- Congress has power to lay & collect taxes, imposts, & excises, but they must be uniform throughout US.
- Capitation/other direct taxes must be in proportion to the census & direct taxes must be apportioned among states
Determining What Is a Tax
The determination of whether a legislative enactment imposes a tax does not depend on the label Congress gives it, but rather on its function.
Uniformity
Requirement of uniformity in the levy of indirect taxes (generally, this means any kind of “privilege” tax, including duties & excises) has been interpreted by Ct to mean geographical uniformity only—i.e., identical taxation of taxed Article in every state where it is found.
Direct Taxes—Must Be Apportioned
- A “direct” tax (imposed directly on property/ person) has seldom been employed by Congress b/c of cumbersome apportionment requirement; taxes on income from real/personal property were initially held “direct” by Ct, but the resulting need for apportioning such taxes was removed by 6th Amend (income tax amendment).
Taxes Are Generally Valid
- Absent a specific restriction such as those above, be very hesitant to rule against a tax
- A tax measure will be upheld if it bears some reasonable relationship to revenue production/if Congress has the power to regulate the taxed activity.
Spending Power
- Congress may spend to “provide for the common defense & general welfare.” [Art. I, §8]
- Spending may be for any public purpose—not merely accomplishment of other enumerated powers.
- Nonspending regulations: unauthorized.
- Remember Bill of Rights applies power; i.e., fed gov could not condition welfare payments on an agreement not to criticize government policies.
Regulation Through Spending
- Congress can use spending power to “regulate” areas, even where it otherwise has no power to regulate area, by requiring entities that accept gov money to act in a certain manner (i.e., attaching “strings” to government grants).
Commerce Power
- Empowers Congress to “regulate commerce w/ foreign nations, & among the several states, & w/ Indian tribes.”
Definition of Commerce
1) Includes Basically All Activity Affecting 2/ More States
- “every species of commercial intercourse . . . which concerns more states than one” & included virtually every form of activity involving/affecting 2/ more states.
2) Includes Transportation/Traffic
- Transportation/traffic is commerce, whether/not a commercial activity is involved.
Vehicular Transportation Not Required
- Any transmission across state lines, such as electricity, gas, telegraph, telephone, TV, radio, & mail transmission (including educational materials & sale of insurance), will constitute interstate commerce.
“Substantial Economic Effect”
- Congress has power to regulate any activity, local/interstate, that either in itself/ in combination w/ other activities has a “substantial economic effect upon,” or “effect on movement in,” interstate commerce.
Power Not Unlimited
- To be w/in Congress’s power under Commerce Clause, a fed law must either:
(i) Regulate channels of interstate commerce;
(ii) Regulate instrumentalities of interstate commerce & persons & things in interstate commerce; or
(iii) Regulate activities that have a substantial effect on interstate commerce.
Intrastate Activity
- When Congress attempts to regulate intrastate activity under 3rd prong, above, Ct will uphold regulation if it is of economic/ commercial activity & there is a rational basis to conclude that activity in aggregate substantially affects interstate commerce.
- If regulated intrastate activity is not commercial/economic, Ct generally will not aggregate effects & regulation will be upheld only if Congress can show a direct
substantial economic effect on interstate commerce, which it generally will not be able to do.
Activity vs. Inactivity
- CC gives Congress power only to regulate existing commercial activity; it does not give Congress power to compel activity, even if failure to undertake the activity may affect interstate commerce
War and Related Powers
- Congress has power to declare war, raise & support armies, provide for & maintain a navy, make rules for the gov & regulation of armed forces, & organize, arm, discipline, & call up the militia.
- Of course, several other congressional powers may have direct/indirect application to military purposes: tax & spending power, commerce power, Senate’s treaty consent power, maritime power, investigatory power, etc.
Economic Regulation
1) During War
- Regulatory power of Congress, especially in economic matters & mobilization of troops, in support of war effort is pervasive (although theoretically limited by the Bill of Rights); thus, Ct has sustained national price & rent control, as well as conscription & regulation of civilian/military production & services.
2) Postwar
- To a considerable extent, this pervasive regulatory power may be validly extended into post-wartime periods both to remedy wartime disruptions & to cope w/ “cold war” exigencies.
- Legislation in the field of veterans’ rights & limitations thereon may be extended indefinitely as long as veterans/their relatives may survive.
Military Courts and Tribunals
- The constitutional basis of courts of military justice (trial & review of offenses by military personnel, including cts-martial & reviewing agencies & tribunals) is not Article III, but rather Article I, Section 8, Clause 14 (congressional power to make rules for government and regulation of armed forces), buttressed by the Necessary and Proper Clause.
