Legislative Power

Question 1

Congress’s Authority to Act

Answer 1

In order for Congress to enact a law, it must have express or implied authority through one of its “sources of power”

Question 2

Necessary and Proper Clause

Answer 2

Congress may take any action, not prohibited by the Constitution, that is necessary and proper to execute ANY power granted to ANY branch of the federal government. This power alone cannot support federal law, rather it must work in conjunction with another federal power. Here,

Question 3

Commerce Clause

Answer 3

Congress has the power to regulate all foreign and interstate commerce. Federal law may regulate 1) the channels of interstate of commerce, 2) the instrumentalities, persons, and things of interstate commerce, and 3) intrastate economic activities that have a substantial effect on the interstate commerce.

Question 4

Channels of Interstate Commerce

Answer 4

Congress may regulate the channels of interstate commerce such as roads, rivers, and the internet. Here,

Question 5

Instrumentalities, Persons, and Things of Interstate Commerce

Answer 5

Congress may regulate all instrumentalities, persons, and things directly related to interstate commerce. Here,

Question 6

Economic Activities that have a Substantial Effect on Interstate Commerce

Answer 6

Congress may regulate intrastate economic activities that, in the aggregate, have a substantial effect on interstate commerce. Here,

(Noneconomic activities can NOT be based on cumulative impact)f

Question 7

Taxing Power

Answer 7

Congress has the power to tax so long as the tax bears some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed. However, neither Congress nor the states may tax exports to foreign countries. Here,

Question 8

Spending Power

Answer 8

Congress may spend “to provide for the common defense and general welfare.” Spending may be for any public purpose. Here,

Question 9

Taking Clause (Note: Also an individual right and requires a showing of state action)

Answer 9

The G may take private property for public use if the G pays the owner/occupant “just compensation”

Question 10

Possessory Taking

Answer 10

Actual or physical appropriation of property will almost always amount to a taking, unless it is an emergency situation. Here,

Question 11

Regulatory Taking

Answer 11

If a regulation denies the landowner of ALL economic use of his land, then the regulation amounts to a taking. here,

Regulations that merely decrease the value of property do not amount to a taking if they leave an economically viable use of the property. Here,

Question 12

Moratoriums

Answer 12

Temporarily denying an owner of all economic use of property does NOT constitute a per se taking. Instead, the court will carefully examine and weigh all the relevant circumstances in order to determine whether “fairness and justice” require just compensation. Here,

Question 13

Public Use

Answer 13

The G is justified in its taking so long as the G acts out of a reasonable belief that its action will benefit the public. Here,

Question 14

Just Compensation

Answer 14

The G must pay fair market value for any property taken through eminent domain. The compensation measured in the hands of the owner, not as to the benefit the G will receive. Owner’s loss, not G’s come up.

Question 15

Citizenship

Answer 15

Congress may establish uniform rules of citizenship. This gives Congress plenary power over aliens. Here,

Question 16

Civil Rights

Answer 16

Congress may restrict state activities that violate civil liberties. Here,

Question 17

War

Answer 17

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

Question 18

Federal Police Power

Answer 18

Congress has NO general policy power. However, Congress has police power over the District of Columbia, federal lands, military bases, and Indian reservations. Here,

Question 19

10th Amendment

Answer 19

All powers NOT granted to the U.S., nor prohibited to the states, are reserved to the states or the people. Here,

Congress can NOT regulate states through the spending power, however, Congress can “indirectly” regulate state government action by imposing “conditions” on the grant of money. Here,

Congress MAY prohibit harmful commercial activity by state governments. Here,

NOTE: the Court almost NEVER strikes down on 10A grounds.

Question 20

Delegation of Legislative Power

Answer 20

Legislative power may generally be delegated to the other branches. In fact, no legislative delegation has been invalidated since 1936. Here,