Legislative Power Flashcards
Federal police power
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
Enumerated and implied powers generally
Congress can exercise the powers enumerated in the constitution plus any powers necessary and proper to carry out any of its enumerated powers
Necessary and Proper Clause
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
Taxing and spending power
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
Spending power conditions
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
Validity of taxes
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
Commerce power generally
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
Regulation of intrastate activity
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
Commercial vs. Noncommercial activity for intrastate
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
Noneconomic intrastate activity
Tenth Amendment precludes Congress from regulating noneconomic intrastate activity in areas traditionally regulated by state or local governments
Activity vs. Inactivity
Commerce Clause gives Congress power only to regulate existing commercial activity
Does not give Congress power to compel activity
Commerce clause and private discrimination
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
War
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
Military courts and tribunals
Congress can make rules for the government and regulation of armed forces
Investigatory Power
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
Subpoena of presidential information
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
Property Power
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
Postal power
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
Delegation of legislative power
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
Major questions doctrine
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
Bicameralism and Presentment
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
Line item vetoes
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
Legislative vetoes
Congress cannot retain a legislative veto - when congress gives itself the authority to amend or repeal an existing law without undergoing bicameralism and presentment
