LEGISLATIVE POWERS Flashcards
fed gov’t is one of
limited powers
police power
no federal police power (Congress has no general police power to legislative for health, safety, welfare of nation)
BUT Congress has police type powers over DC, federal lands, military, etc.
necessary and proper clause
- congress has power to make all laws necessary and proper to carry out any of the legislative powers in Art 1
- IT IS NOT AN INDEPENDENT SOURCE OF POWER - clause standing on its own cannot support fed law, must work in conjunction with another federal power
taxing and spending power
- congress has power to tax and spend to provide for general welfare
- note that congress cannot directly legislate for general welfare
spending power conditions
under spending power, congress can impose conditions on grant of money to state/local gov’t
these conditions are valid if:
1. clearly stated
2. relate to purpose of program
3. not unduly coercive
e.g., fed highway funds conditioned on state maintaining min drinking age of 21
taxes
generally valid – valid if bears reasonable relation to revenue production or congress has power to regulate what’s being taxed
commerce power
congress has power to regulate interstate and foreign commerce, as well as commerce with indian tribes
to be within congress’s commerce clause power, fed law regulating interstate commerce must:
- regulate CHANNELS of interstate commerce (highways, etc.)
- regulate INSTRUMENTALITIES of interstate commerce (planes, etc)
- regulate activities that have a substantial effect on interstate commerce
e.g., Congress cannot regulate noncommercial activity with no link to interstate commerce, such as making possession of tea a misdemeanor
intrastate commercial activity (local)
when congress regulates intrastate commercial activity under 3rd prong, ct will uphold if it can think of rational basis on which congress could say activity in aggregate substantially affects interstate commerce
NOTE: this rule only applies when regulated intrastate activity is economic/commercial in nature (e.g., growing of weed in one’s own backyard)
commerce power continued
re intrastate activity / 10A limitation
congress CANNOT regulate non-economic intrastate activity in areas traditionally regulated by state/local gov’t
anti-commandeering
10A also limits congress’s ability to regulate states (congress can’t require states to enact laws/administer fed laws)
commerce clause and private discrimination
under commerce clause power, congress can bar private discrimination in activities that might have a substantial effect on interstate commerce (3rd prong)
contrast with public discrimination by local or state gov’t – congress can directly regulate under its 14A enforcement power
congress’s war powers
constitution gives congress power to declare war, raise and support armies
investigatory power
- congress has broad implied power to investigate to secure info for potential legislation
- congress can subpoena president’s personal info (must advance legit legislative purpose)
delegation of legislative power
congress can delegate (broadly) rulemaking or reg power to exec branch or judicial branch as long as intelligible standards are set and power isn’t something uniquely given to congress (e.g., power to impeach)
legislative veto and line item vetoes
to pass a law, congress has to use bicameralism (passage of bill by both houses) followed by presentment to POTUS for signature or veto
attempts by congress to create laws without these 2 requirements are invalid
1) no line item vetoes – potus can only approve or reject bill as a whole
2) no legislative veto – congress can’t veto decision by an agency acting per delegated power through a resolution (must be overturned by enacting a law)
