Legislative Power Flashcards
Legislative power - generally
The federal government has limited powers. Every exercise of federal power must be traced to the constitution
Enumerated and implied powers - generally
Congress can exercise the powers enumerated in the constitution under article one section eight, plus any powers necessary and proper to carry out any of its enumerated powers 
Enumerated and implied powers - no federal police power
Congress has no general police power. That is, it has no general power to legislate for the health, safety, and welfare of the nation. However, Congress has police power type power over the District of Columbia, federal lands, military bases, and Indian reservations, based on its power over the capital and its property power.
Enumerated and implied powers - the necessary and proper clause
Congress has the power to make all laws necessary and proper, meaning, appropriate or rational, to carry out any of the legislative powers and numerator in article one, as long as the law law doesn’t violate another provision of the constitution. This is a low hurdle, laws can be foolish just not irrational.
The necessary and proper clause standing alone cannot support federal law. It must work in conjunction with another federal power. So, an answer choice that states that a law is supported by the necessary and proper clause, or is valid under Congress power to enact legislation necessary and proper, will be incorrect unless another federal power is linked to it in the question. 
Enumerated and implied powers - taxing and spending power
Congress has the power tax and spend to provide for the general welfare. Taxing and spending may for any public purse purpose not prohibited by the constitution.
Enumerated and implied powers - taxing and spending power vs legislating for the general welfare
The federal government can tax and spend for the general welfare, but Congress can’t directly legislate for the general welfare. So, non-spending regulations can’t be supported by the general welfare clause. 
Enumerated and implied powers - taxing and spending power - spending power conditions
Under the spending power, Congress can impose conditions on the grant of money to state or local governments.
These conditions are valid if they are 1) clearly stated 2) relate to the purpose of the program 3) are not unduly coercive, and 4) do not otherwise violate the constitution. 
Enumerated and implied powers - taxing and spending power - taxes are generally valid
Most federal taxes will be upheld if they bear some reasonable relationship to revenue production, or to promoting the general welfare. Rarely, attacks may be regarded as an impermissible regulatory penalty. For example, if it seeks to compel rather than simply influence behavior.
Conversely, what congress labels, as a penalty may be deemed as a permissible tax if it functions as a tax and raising revenue or influencing, but not compelling behavior. For example, a law that required individuals to pay a penalty if they didn’t purchase health insurance was found to be attack where the penalty was payable along with income taxes, buried by income and taxpayer status and was estimated to bring $4 billion into the government coffers.
Enumerated and implied powers - commerce power
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 (like highways, waterways, telephone lines, the Internet)
Regulate the instrumentalities of interstate commerce (like planes, trains, automobiles) and persons and things in interstate commerce
Or
Regulate activities that have a substantial effect on interstate commerce, even if purely local. 
Enumerated and implied powers -commerce power - intrastate activity
When Congress attempts to regulate intrastate commerce in other words, local commerce under the third prong (substantial effect) 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 affect interstate commerce.
Enumerated and implied powers -commerce power - intrastate activity - commercial vs noncommercial activity
The rule for intrastate commerce applies only when the regulated activity is economic or commercial in nature. If the regulated intrastate activity is not commercial or economic, the 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, which Congress generally will not be able to do. 
Enumerated and implied powers -commerce power - intrastate activity - 10A limitation
The court has interpreted the 10th amendment to preclude Congress from regulating non-economic intrastate activity in areas, traditionally regulated by state or local governments.
Example, Congress cannot criminalize intrastate domestic violence against women, even though in the aggregate, such violence substantially affects interstate commerce because of loss of work, travel, and spending by the victims. 
Enumerated and implied powers -commerce power - intrastate activity - activity vs inactivity
The commerce clause gives Congress power only to regulate existing commercial activity. It does not give Congress power to compel activity.
Enumerated and implied powers -commerce power - gives congress power to prohibit private discrimination
Under the commerce power, Congress may prohibit private discrimination in activities that might have a substantial effect on interstate commerce. Contrast that with public discrimination by the state or local governments, which Congress can directly regulate under its 14th amendment enforcement powers.
Enumerated and implied powers - war and related powers
The constitution gives Congress power to declare war, raising support armies, and provide for and maintain a navy.
