Legislative Powers Flashcards

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1
Q

Commerce - General Rule

A

Congress has broad plenary authority to regulate commerce between the states. Commerce means intercourse between the states.

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2
Q

Thomas View

A

(Thomas has a very narrow scope – bartering and exchanges envisioned by the framers)

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3
Q

Perez Categories

A

Perez breaks down this broad authority into three categories
o The channels of commerce
o The instrumentalities of commerce
o Activities having a substantial effect on interstate commerce

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4
Q

Third Prong Rule

A

Lopez and Morrison limited the commerce power, so courts should first consider whether the activity is economic or non-economic. As done in Wickard, aggregation is only appropriate when an economic activity is regulated, especially if its an area of traditional State regulation.

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5
Q

Economic Activity

A

If it is an economic activity, courts will aggregate all similarly situated individual’s activity for cumulative impact to find a substantial effect.

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6
Q

Non-economic Activity

A

Under Morrison, aggregation is likely unavailable for noneconomic activity. Mere possession is not an economic activity.

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7
Q

Inactivity (commerce power)

A

The Commerce Power cannot be used to regulate inactivity. The power to regulate commerce presupposes the existence of commercial activity to be regulated.

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8
Q

Step Two of Commerce

A

Congressional findings of an effect on commerce are useful but not binding.

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9
Q

Step Three of Commerce

A

If this is a traditional area of state regulation, courts may find this to be outside the commerce power.

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10
Q

Step Four of Commerce

A

State if the requirement in the statute is nec and proper part of the statutory scheme to [enter reason for scheme]

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11
Q

Jdx Hook

A

Under existing case law, it is dispositive on the validity of a statute if that statute has a jurisdictional hook. It requires a plaintiff to prove that the regulated good affected interstate commerce.

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12
Q

Statutory Scheme in Commerce

A

If a regulated activity is part of detailed statutory scheme, Congress may have broader power to reach intrastate and non-economic activities.

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13
Q

Nec and Proper

A

The Necessary & Proper clause allows Congress to enact all legislation that is appropriate or conducive to achieve its enumerated ends.

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14
Q

Rational Basis Test

A

The rational basis test considers whether the statute is a means that is rationally related to the implementation of a constitutionally enumerated power.

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15
Q

Implied Powers – Nec and Proper

A

Congress is not limited to express Article I powers, some may be implied. Implied powers can have other powers implied from them so long as there is a rational relation to the original enumerated power.

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16
Q

Taxing & Spending Power

A

Congress has broad authority to tax and spend for the general welfare.

17
Q

Congress Conditions

A

Congress may attach conditions on the receipt of federal funds. However, there are some limitations:
o Congress must unambiguously state the condition so States may decide whether to comply.
o Conditions must be related to the federal funding.
o The condition is not coercive

18
Q

Treaty Power General Rule

A

Treaties are a source of federal power and treaties made under the authority of the US are declared the supreme law of the land. (Missouri v. Holland)

19
Q

Treaty - Local Reach

A

If Congress intends a treaty to have local reach, it must be express in its intent.

20
Q

Self-Executing v. Non-self-executing Treaties

A

Treaties are either self-executing or non-self-executing. Self-executing treaties do not need additional legislation; however, a non-self-executing treaty does need additional legislation to render it effective.

21
Q

Last in Time – Treaty Power

A

Treaties preempt conflicting state law. When a treaty conflicts with federal law, whichever was last enacted governs. (Whitney v. Robertson)

22
Q

13A

A

The Thirteenth Amendment gives Congress the power to adopt legislation rationally related to eliminating racial discrimination. This power has been broadly interpreted to allow Congress to regulate both private and government action and is the only Amendment that authorizes Congress to regulate purely private conduct.

23
Q

10th Amendment Limitations General Rule

A

Traditionally, the 10th amendment was viewed as a truism. However, in recent years, the court has used the 10th amendment to prohibit the federal govt from commandeering States and state officials

24
Q

Counter 10A

A

If it is an incidental burden to state officials, it will not be commandeering per Scalia in Printz dicta.

25
Q

General Applicability – Work Around to 10A

A

Congress may make a law of general application that applies to both states and individuals. Commandeering does not occur here, but Congress should expressly state the statute applies to both.

26
Q

11A

A

The 11th Amendment prohibits any citizens from suing a State in Federal court. There are some exceptions to this rule:
o A State may waive its sovereign immunity and consent to being sued in federal court
o A citizen may sue a state official for injunctive relief
 Issue: Will state cover damages?
o The federal govt can sue a State directly
o Congress may abrogate a State’s sovereign immunity.

27
Q

Congress Abrogate Sovereign Immunity Test

A

To abrogate a State’s sovereign immunity, these two elements must be met:

  • The statute expressly states its intent to abrogate the State’s immunity
  • It abrogates the State’s sovereign immunity pursuant to a valid use of Congress’ Section 5 power under the 14th Amendment
28
Q

Section 5 of 14A

A

Section 5 of the 14th Amendment gives Congress legislative authority to enforce the 14th Amendment. This section acts as a lightsaber for Congress to slash through state sovereign immunity doctrine and get around commandeering concerns

29
Q

14A - What is enforcement?

A

Congress may enact legislation to remedy a constitutional violation or to prevent a violation but only if it is remedial of an existing problem in the states.

30
Q

STEP ONE - 14A

A

The appropriateness of the measure should be considered in light of the evil presented. Courts will look to see whether there is a pattern of a constitutional violation. (Determine what is the const violation)

31
Q

STEP TWO - 14A

A

The legislation must be proportional and congruent to the constitutional violation.

32
Q

How does standard of protection affect 14A?

A

The higher the level of protection a Constitutional right receives, the easier the practical burden in establishing a pattern of violation by the States

33
Q

Individual Remedy - 14A - Georgia v. US

A

Congress may always abrogate a State’s sovereign immunity to allow an individual to bring an action against a State for violation of the Constitutional rights.