Legislative Power

Question 1

Federal police power

Answer 1

Congress has no general police power - no general power to legislate for the health, safety, and welfare of the nation

However, congress has police power type powers over DC, federal lands, military bases, and Indian reservations

Question 2

Enumerated and implied powers generally

Answer 2

Congress can exercise the powers enumerated in the constitution plus any powers necessary and proper to carry out any of its enumerated powers

Question 3

Necessary and Proper Clause

Answer 3

Congress has the power to make all laws necessary and proper (appropriate or rational) to carry out any of the legislative powers in Article 1, as long as does not violate another provision of the Const
- low hurdle
- any rational constitutional means to exercise an enumerated power

Can never stand alone - must work in conjunction with another federal power

Question 4

Taxing and spending power

Answer 4

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 the Constitution
- does not have general welfare powers but can use tax and spending power for the general welfare

Question 5

Spending power conditions

Answer 5

Under the spending power, congress can impose conditions on the grant of money to state or local governments - strings

Conditions are valid if they
- are clearly stated
- relate to the purpose of the program
- are not unduly coercive, and
- do not otherwise violate the constitution

Question 6

Validity of taxes

Answer 6

Generally valid - most federal taxes will be upheld 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

Question 7

Commerce power generally

Answer 7

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

To be within Congress’s commerce clause power, a federal law regulating interstate commerce must either:
- regulate the channels of interstate commerce
- regulate the instrumentalities of interstate commerce (like cars, planes), and persons and things in interstate commerce, or
- regulate activities that have a substantial effect on interstate commerce

Question 8

Regulation of intrastate activity

Answer 8

When Congress attempts to regulate intrastate commercial activity under the third prong, the 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 9

Commercial vs. Noncommercial activity for intrastate

Answer 9

Rule for intrastate commerce applies only when the regulated intrastate activity is economic or commercial in nature

If not commercial or economic, court generally will not aggregate the effects and will uphold the regulation only if congress can show that it nonetheless has a direct substantial economic effect on interstate commerce
- generally won’t be able to do

Question 10

Noneconomic intrastate activity

Answer 10

Tenth Amendment precludes Congress from regulating noneconomic intrastate activity in areas traditionally regulated by state or local governments

Question 11

Activity vs. Inactivity

Answer 11

Commerce Clause gives Congress power only to regulate existing commercial activity

Does not give Congress power to compel activity

Question 12

Commerce clause and private discrimination

Answer 12

Under the commerce power, Congress may prohibit private discrimination in activities that might have a substantial effect on interstate commerce

Contrasted with public discrimination - can be directly regulated under 14th amendment

Question 13

War

Answer 13

Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy

Economic regulation during war and in postwar period to remedy wartime disruptions upheld

Question 14

Military courts and tribunals

Answer 14

Congress can make rules for the government and regulation of armed forces

Question 15

Investigatory Power

Answer 15

Congress has a broad implied power to investigate to secure information for potential legislation or other official action

Must be expressly or impliedly authorized by the appropriate congressional house

Question 16

Subpoena of presidential information

Answer 16

Under the investigatory power, Congress can subpoena the President’s personal information

Subpoena must advance a legitimate legislative purpose, but the Court will balance the Congress’s interests in obtaining the information against the burdens on the President

Question 17

Property Power

Answer 17

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

No express limitation on Congress’s power to dispose of federal property, federal takings of private property (eminent domain) must be pursuant to an enumerated power under some other provision of the Constitution

Question 18

Postal power

Answer 18

Congress has an exclusive postal power - can classify and place reasonable restrictions on use of the mails but may not deprive any citizen or group of citizens of the general mail privilege

Question 19

Delegation of legislative power

Answer 19

Congress can delegate rule making or regulatory power to the executive branch or judicial brand as long as intelligible standards are set and the power isn’t something that is uniquely confined to Congress

General standard will usually suffice as an intelligible principle

Question 20

Major questions doctrine

Answer 20

When an agency adopts regulations that have extraordinary economic and political significance, it must be able to point to clear congressional authorization for the exercise of such power

Question 21

Bicameralism and Presentment

Answer 21

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

Attempts to create laws without it are invalid

Question 22

Line item vetoes

Answer 22

Reqs of bicameralism and presentment mean that Congress cannot give the President a line item veto power
- giving the president the power to cancel parts of a bill while approving others is an unconstitutional delegation of legislative power

President can only approve or reject a bill as a whole

Question 23

Legislative vetoes

Answer 23

Congress cannot retain a legislative veto - when congress gives itself the authority to amend or repeal an existing law without undergoing bicameralism and presentment