Legislative Power

Question 1

the federal government has what kind of powers?

Answer 1

LIMITED powers

Question 2

what kinds of powers can Congress exercise? (2)

Answer 2

either/both…
1) powers ENUMERATED in the Constitution (art. 1 § 8), and/or
2) any powers NECESSARY and PROPER to carry out any of its enumerated powers

Question 3

what is the “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 enumerated in Article I, as long as that law doesn’t violate another provision of the Constitution

Question 4

true or false: federal laws under the necessary and proper clause can be foolish, but not irrational.

Answer 4

TRUE (low hurdle)

Question 5

true or false: the necessary and proper clause standing alone can support federal law.

Answer 5

FALSE (must be in conjunction with an enumerated power)

Question 6

what is Congress’ taxing and spending power?

Answer 6

congress has the power to tax and spend to provide for the general welfare
**NOTE = taxing/spending may be for any public purpose not prohibited by the constitution

Question 7

true or false: Congress can directly legislate for the general welfare.

Answer 7

FALSE (nonspending regulations are not supported by the general welfare clause)

Question 8

what requirements must be met for Congress to validly impose conditions on a grant of money to state and local governments? (4)

Answer 8

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

Question 9

when will federal taxes generally be upheld?

Answer 9

when they bear some reasonable relationship to revenue production or to promoting the general welfare

Question 10

when will a tax be considered a penalty?

Answer 10

if it seeks to compel rather than simply influence behavior

Question 11

true or false: use of the word “penalty” to describe a tax is enough to make it an impermissible penalty.

Answer 11

FALSE (will be treated as a tax if it functions like a tax)

Question 12

what is Congress’ commerce power?

Answer 12

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

Question 13

what must a federal law regulating interstate commerce do to be within Congress’ commerce clause power? (3 options)

Answer 13

must either…
1) regulate the CHANNELS of interstate commerce,
2) regulate the INSTRUMENTALITIES of interstate commerce (including persons), or
3) regulate activities that have a SUBSTANTIAL EFFECT on interstate commerce (even if local)

Question 14

when will SCOTUS uphold a congressional regulation of LOCAL commerce (b/c of its substantial effect on interstate commerce)? (what is the test?)

Answer 14

will uphold if it can provide a RATIONAL BASIS upon which Congress could conclude that the activity in the AGGREGATE substantially affects interstate commerce

Question 15

what kind of INTRASTATE activities can be regulated via Congress’ commerce power?

Answer 15

ONLY activities that are economic or commercial in nature
**NOTE = 10th amendment prohibits Congress from regulating noneconomic intrastate activity (reserved to state and local govts)

Question 16

true or false: the Commerce Clause power gives Congress the power to compel activity.

Answer 16

FALSE (Congress can only regulate EXISTING activity)

Question 17

true or false: Congress may prohibit private discrimination in activities that may have a substantial effect on interstate commerce

Answer 17

TRUE
**NOTE = congress can DIRECTLY regulate public discrimination thru the 14th amendment

Question 18

when can Congress delegate its rule-making or regulatory power to the executive or judicial branches? (2 rqmts)

Answer 18

if both…
1) intelligible/general standards are set, and
2) the power isn’t something that is uniquely confined to congress (ie–power to declare war or impeach)

Question 19

what must an agency be able to point to in order to adopt regulations that have extraordinary economic and political significance? (major questions)

Answer 19

must be able to point to CLEAR congressional authorization for the exercise of such power
**NOTE = higher standard than normal congressional delegation

Question 20

true or false: Congress can give the president line item veto power.

Answer 20

FALSE (cannot give pres this power; must accept/reject a bill as a whole)

Question 21

true or false: Congress can retain a legislative veto (authority to amend or repeal an existing law without bicameralism and presentment)

Answer 21

FALSE (needs to pass in both chambers and be given to pres)