Legislative Power

Question 1

Does Congress have a general police power?

Answer 1

No. However, Congress has police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations.

Question 2

What is the necessary and proper clause?

Answer 2

Congress can exercise the powers enumerated in the constitution (article 1, section 8) plus any powers necessary and proper to carry out any of its enumerated powers.

Question 3

Congress has the power to make all laws necessary and proper to carry out any of the legislative powers enumerated in Art. 1, as long as…

Answer 3

…that law doesn’t violate another provision of the Constitution. This is a low hurdle, laws can be foolish just not irrational.

Question 4

Can the Necessary and Proper Clause standing along support federal law?

Answer 4

No, must work in conjunction with another federal power.

Question 5

Taxing and Spending Power

Answer 5

Congress has the power to tax and spend to provide for the general welfare. Taxing and spending may be for any public purpose not prohibited by Constitution.

Question 6

Can Congress directly legislate for the general welfare?

Answer 6

No, nonspending regulations cannot be supported by the General Welfare Clause.

Question 7

spending power conditions

Answer 7

Congress can impose conditions on the grant of money to state or local governments (strings).

Question 8

When are strings valid?

Answer 8

These conditions are valid if they
(1) clearly stated
(2) relate to the purpose of the program
(3) not unduly coercive, and
(4) do not other violate constitution.

Question 9

Will most federal taxes be upheld?

Answer 9

Yes, if they bear some reasonable relationship to revenue production or to promoting the general welfare.

rarely, a tax may be regarded as an impermissible regulatory “penalty” for example, if it seeks to compel rather than simply influence behavior.

Question 10

what is the commerce power?

Answer 10

Congress has power to regulate all foreign and interstate commerce, as well as commerce with Indian tribes.

Question 11

to be within commerce clause power, a federal law regulating interstate commerce must either:

Answer 11

regulate the channels

regulate the instrumentalities

regulate activities that have a substantial effect on interstate commerce

Question 12

when can congress regulate instrastate commercial activitiy?

Answer 12

court will uphold the regulation if it can think of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.

Question 13

(aggregate effect) if the regulated intrastate activity is not commercial or economic, the court generally will not aggregate the effect and….

Answer 13

…will uphold the regulation only if Congress can show that it nonetheless has a direct substantial economic effect on interstate commerce, which Congress typically cannot do.

Question 14

what is the 10th amendment limitation?

Answer 14

Court has interpreted the 10th to preclude congress from regulating noneconomic intrastate activity in areas traditionally regulated by state or local governments.

Question 15

Can congress compel activity?

Answer 15

No, the commerce clause gives Congress power only to regulate existing commercial activity; it does not give Congress power to compel activity.

Question 16

(CC) Congress power to prohibit private discrimination

Answer 16

under CC, Congress may prohibit private discrimination in activities that might have a substantial effect on interstate commerce. Contrast with public discrimination, which Congress can directly regulate under its 14th amendment enforcement power.

Question 17

economic regulation

Answer 17

economic regulation during war and in the postwar period to remedy wartime disruptions has been upheld.

Question 18

Military Courts and tribunals

Answer 18

congress can make rules for the government and regulation of armed forces.

Question 19

investigatory power

Answer 19

Congress has broad implied power to investigate to secure information for potential legislation or other official action. Investigation must be expressly or impliedly authorized by the appropriate congressional house.

Question 20

subpoena of presidential information

Answer 20

under the investigatory power, Congress can subpoena the president’s personal information. Subpoena must advance a legitimate legislative purpose.

Question 21

property power

Answer 21

Congress can dispose of and make rules for territories and other properties of the US.

no express limitation on power to dispose of federal property

federal takings of private property must be pursuant to an enumerated power under some other provision of Constitution.

Question 22

postal power

Answer 22

congress has an exclusive postal power. Congress can place reasonable restrictions on use of mails but can’t deprive citizens of the general mail privilege.

Question 23

power over citizenship

Answer 23

congress may establish uniform rules of naturalization. gives congress plenary power over aliens

Question 24

exclusion of aliens

Answer 24

aliens have no right to enter the US and can be refused entry because of their political beliefs.

However, resident aliens must get notice and a hearing before deportation.

Question 25

naturalization and denaturalization

Answer 25

congress has exclusive power over naturalization and denaturalization. However, Congress cannot take away the citizenship of any citizen - native-born or naturalized - without their consent.

Question 26

admiralty power

Answer 26

power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction.

Question 27

delegation of legislative power

Answer 27

congress can delegate rulemaking or regulatory power to executive or judicial as long as intelligible standards are set and the power isn’t something that is uniquely confined to congress. a general standard will usually work.

Question 28

when an agency claims to be exercising broad power to adopt regulations that have extraordinary economic and political significance “major questions”, the court will look at both:

Answer 28

whether the agency has historically asserted such power AND whether there is clear congressional authorization for claimed power.

Question 29

in major questions cases, modest, vague or subtle language cannot….

Answer 29

… support a broad delegation of power.

Question 30

what two theories does congress use to pass a law?

Answer 30

Congress must use bicameralism (passage of a bill by both houses of Congress) followed by presentment to PResident for signature or veto.

Question 31

Can congress give president a line item veto power?

Answer 31

No. Giving the president the power to cancel parts of a bill while approving others is unconstutional. Can only approve or reject as a whole.

Question 32

can congress retain a legislative veto?

Answer 32

No, Congress cannot just give itself the authority to amend or repeal exisiting laws without undergoing bicameralism or presentment.

Question 33

speech or debate clause - immunity for federal legislators

Answer 33

conduct that occurs in regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution.