Legislative Power

Question 1

Enumerated and Implied Powers

Answer 1

Congress can exercise those powers ENUMERATED in the Constitution and those necessary and proper to carry out all powers vested in the federal government.

Question 2

Necessary and Proper Power

Answer 2

Congress has the power to make all laws necessary and proper (not illegal) to execute ANY power granted to ANY branch of the federal government.

*Cannot exist alone, must be connected to another power.

Question 3

Taxing Power

Answer 3

Congress has broad power to tax. Tax will be upheld if:

• Bears some reasonable relationship to revenue production, OR
• If Congress has the power to regulate the taxed activity

*Neither Congress nor states can tax exports to foreign countries

Question 4

Spending Power

Answer 4

Congress may spend “to provide for the common defense and general welfare. Can spend for ANY PUBLIC PURPOSE

• While feds can tax and spend for general welfare, it cannot directly legislate for it.
• Power is still limited by Bill of Rights and other constitutional provisions.

Question 5

Commerce Power

Answer 5

Congress has EXCLUSIVE power to regulate interstate and foreign commerce. To be valid, the law must EITHER:

1. Regulate the CHANNELS of interstate commerce,
2. Regulate the INSTRUMENTALITIES of interstate commerce or persons and things of IC, OR
3. Regulate activities that have a SUBSTANTIAL EFFECT on interstate commerce

Question 6

Commerce Power: Intrastate Commerce

Answer 6

General Rule: Congress may regulate activities that have a substantial effect on interstate commerce. But when it attempts to regulate intrastate activity, it is only ok IF:

1. The activity is of ECONOMIC OR COMMERCIAL nature AND there is a RATIONAL BASIS on which ct could conclude that the activity, in the AGGREGATE, substantially affects interstate commerce.

OR

2. If the activity is NOT commercial or economic, it cannot be regulated under the Commerce Power, UNLESS Congress can FACTUALLY show a substantial effect on interstate commerce. (e.g., possessing a gun in a school zone, gender-related violence).

Question 7

War Power

Answer 7

Congress has power to declare war, raise and support armies, and provide for and maintain a navy.

• Economic Regulation: during wartime to remedy wartime disruption is fine.
• Military courts and tribunals:
  a. No judicial review by state or regular fed courts
  b. Can try enemy civilians and soldiers- BUT enemy combatants need access to meaningful habeas corpus review.
  c. American soldiers: Military courts have jurisdiction over ALL OFFENSES committed by armed service members (if members at time of offense AND when charfed)
  d. American Civilians: can only be tried in military courts if actual warfare forces civilian cts to shut down

Question 8

Investigatory Power

Answer 8

Congress has implied power to investigate. Investigation must be expressly or impliedly authorized by whichever house is investigating.

Question 9

Property Power

Answer 9

Congress has power to dispose of and make rules for territories and federal properties.

• no express limitation on power to dispose of property
• Taking: Federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under some other constitutional provision

Question 10

Federal Police Power

Answer 10

There is generally NO federal police power.

There police power type power over:

• D.C.
• Federal Lands
• Military Bases
• Indian Reservations

Really based on federal property power.

Question 11

Bankruptcy Power

Answer 11

Congress can establish uniform rules for bankruptcy proceedings.

So can states, as long as state laws don’t conflict with feds.

Question 12

Postal Power

Answer 12

The postal power is exclusive. Congress may classify and reasonably restrict mails but MAY NOT deprive any citizen or group of the general mail “privilege.”

Question 13

Power over Citizenship and Aliens

Answer 13

Congress has plenary power over aliens and may establish rules of naturalization.

Exclusion of Aliens: Congress can exclude aliens (even for political beliefs), and they have no right to enter. BUT resident aliens have right to notice and hearing before deportation.

Naturalization and Denaturalization: Congress has exclusive power over this. But may not take away citizenship of any citizen without consent.

Question 14

Admiralty Power

Answer 14

Plenary and Exclusive, unless Congress leaves maritime matters to state jurisdiction.

Question 15

Power to Coin Money

Answer 15

Congress has power to coin money and fix weights and measures.

Question 16

Patent and Copyright Power

Answer 16

Congress has power to control the issuance of copyrights and patents.

Question 17

Delegation of Legislative Power

Answer 17

Congress may generally delegate its legislative powers to the executive or judicial branches as long as:

• Intelligible standards set (almost anything passes- really never invalidated)
• Power is not UNIQUELY confined to Congress (to declare war, to impeach)
• Congress may not appoint members of a body within admin or enforcement powers

Question 18

Speech and Debate Clause

Answer 18

Immunity for Federal Legislators

Conduct that occurs in the regular course of fed legislative process, and its motivation, are immune from prosecution

Does NOT protect:
- bribes, speeches outside of Congress, or republication of a defamatory statement outside of Congress

Question 19

Congressional “Veto” of Executive Action

Answer 19

A congressional veto of an executive action is invalid.

Definition: When Congress attempts to overturn an executive agency action WITHOUT bicameralism and presentment.