Legislative Power

Question 1

Introduction

Answer 1

General - federal gov is a gov of limited power but can do almost anything it likes so long as it does not violate individual rights

Exam Tip - on MBE, will be given federal statute and have to give strongest argument in favor of congressional power for passing the legislation, and wrongs answers are

1. promoting the general welfare is not a power of congress
2. the federal gov does not have a general police power
3. “necessary and proper” is not a frree standing power ofcongress and it works only as an add-on to some other legislative power

Power - Congress has many powers but three biggest are taxing, spending, and commerc

Exam Tip - general rule for exam is pick the taxing power when the law invovles a tax, pick the spending power whenever federal money is spent or disbured, when in doubt pick the commerce power

Question 2

Powers - Commerce Power

Answer 2

General - almost anything can be regulated as interstate commerce

Rule - congress can regulate:

1. the channels of interstate commerce (highways, seaways, airways, etc)
2. the instrumentalities of interstate commerce (Cars, trucks, ships, railroads)
3. intrastate (and interstate) activity (economic or commercial) that has a substantial effect on interstate commercie

Substantial Effect - judged in the aggregate - does the aggregate activity of everyone doing the same substantial effect on interstate commerce; presumed for economic or commercial activity but must be proven for non-economic and non-commercial activity

Question 3

Powers - Taxing and Spending Powers

Answer 3

General - think of as separate powers though they are lumped to gether in one clause

Taxing - right answer whenever congress imposes a tax even when the tax is actually used to prohibit the good or activity in question a

Rule - tax must be rationally related to raising revenue and must be geographically uniform

Spending - including spending for the general welfare

Rule - congress can use the spending power to accomplish things it could not do by direct regulation under the commerce clause

Question 4

Powers - Anti-Commandeering

Answer 4

Rule - congress cannot force states to adopt or enforce regulatory programs by commandeering state and local officers to carry out federal programs

What can congress d0? - it can bribe states through use of the spending power or it can adopt its own regultaory program and enforce it with federal officers

Question 5

Powers - War and Defense Power

Answer 5

Congress has the power to declare war and the power to maintian the arm and navy and air force

Can provide discipline of US armed forces

Congress can provide military trial of enemy combatants and enemy civilians

Congress cannot provide the military trial of US civilians

Question 6

Powers - Enforce Civ War A’s

Answer 6

13A - congress has broad power to legislate against racial discrimination whether public or private which includes purely private racial discrmiination

14A - congress has power to remedy violations of individual rights by the government, but only as those rights have been defined by the court

Note - does not enable congress to redefine constitutional rights by legislation

Remedy - to be properly remedial, legislation must have congruence and proportianlity between the remdial law enacted by congress and the constitutional right as declared by the SCOTUS

SCOTUS - congress has no power to overrule the courts decisions and define new rights

15A - congress has power to ensure no racial discrimination in voting