legislative power Flashcards
police power
no fed police power
except: Military, Indian tribes in Indian land, federal lands or territories, D.C.
taxing and spending
Congress may tax and spend for the general welfare
* Most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed
commerce power
congress has the power to regulate all foreign and interstate commerce
congress may regulate the:
* channels of ISC
* the instrumentalities of ISC and persons or things in ISC
* economic activites that have a substantial effect on ISC
-based on cumulative impact
-even if intrastate, court will uphold the reg if it is of and economic or commercial activity that in aggregate substantially affects IS
-note: does not apply to noneconomic and does not apply to inactvitiy (congress doesnt have the power to compel activity)
necessary and proper
Congress has the authority to make all laws N&P to carry out its power
Tenth Amendment as a limit on Congressional powers
all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people
anti-commandeering principle:
* Congress cannot compel state regulatory or legislative action; including cannot comandeer state officials/require them to act in certain way
spending power conditions
* but 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 and are not unduly coercive
Congress’ power under section 5 of the Fourteenth Amendment
* cong may legislate to enforce 14th Am
* but 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
delegation
no limit exists on cong’s ability to delegate legislative power
nondelegation doctrine (law unconsti because excessive delegation of power) pretty much moot
major questions need clear direction from Congress
legislative vetos
when congress tries to override an executive action without bicameralism and/or presentment –> unconsitutional
line item veto
when the president attempts to veto part of a bill while signing the rest into law –> unconstitutional
president must sign or veto the bill in its entirety
