Legislative Powers

Question 1

Scope of Legislative Power

Answer 1

In theory, the scope is unlimited (so long as it does not violate individual rights).

Question 2

Three Main Sources of Power for the Legislative Branch

Answer 2

• Taxation
• Spending
• Commerce

[It is NOT: General welfare, police power, or necessary and proper (that is attached as an addendum to other powers)]

Question 3

Commerce Power

Answer 3

Regulates interstate commerce, which is construed broadly.

Congress can regulate:

• Channels of interstate commerce (roads, waterways, airways, etc.)
• Instrumentalities of interstate commerce (cars, boats, etc.)
• Intrastate activity that has a substantial effect on interstate commerce.

Substantial Effect: Is judged in the aggregate. Ask: Does this activity in the aggregate affect interstate commerce? (Usually yes).

Interstate Actions

Congress may regulate non-commercial/non-economic activity ONLY IF they can show an actual substantial effect on interstate commerce.

Question 4

Taxing Power

Answer 4

Taxing Clause should be used as a source of power whenever asked a question involving taxes–even if the tax is used to prohibit a good or activity.

Rule: Tax only needs to be rationally related to the revenue.

Question 5

Spending Power

Answer 5

Spending Power may be used for general welfare. Can be used to accomplish goals not capable under Commerce Power. [Withhold federal money unless States do an action/adopt a policy].

Question 6

Anti-Commandeering Rule

Answer 6

Rule: Congress cannot force states to adopt or enforce federal regulatory programs.

[I.e. It cannot commandeer states and local agencies to implement federal programs.]

Question 7

War and Defense Powers

Answer 7

1. Congress has the power to declare war.
2. Congress has power to maintain the Army and the Navy.
3. Congress has power to provide military discipline for military personnel.
4. Congress can provide trial for enemy combatants and enemy civilians.

Congress may not provide trial for U.S citizens who are civilians.

Question 8

Legislated Remedies in the 13th, 14th, and 15th Amendments

Answer 8

13th Amendment:

Congress has power to legislate against private (even purely private) and public racial discrimination.

14th Amendment:

Congress has power to remedy violations of individual rights violated by the government. (Rights – as defined by the court.)

To provide a remedy, it must have congruence and proportionality. [Reasonable fitness/closeness between the remedial law enacted and the constitutional right.]

15th Amendment:

Congress has the power to ensure no racial discrimination in voting.

Question 9

Delegation of Powers

Answer 9

Congress can delegate its power to administrative agencies, so long as there are intelligible standards governing the delegated power. [Think Admin Law].

This standard is not demanding.

Question 10

Immunity for Legislators

Answer 10

Senators and Representatives are protected through the Speech and debate Clause.

Rule: Senators and Congressmen (and their aides) cannot be prosecuted or punished in relation to their official acts.

Official acts of a legislator cannot be introduced as evidence.

Question 11

Prohibited Legislation

Answer 11

• Bill of Attainder: A bill that provides a legislative punishment without a judicial trial is unconstitutional.
• ExPost Facto Laws: It is unconstitutional to expand criminal liability retroactively. This includes applying increased penalties retroactively.