National Legislative Power and Distribution of Federal Powers

Question 1

What were the three interpretations of the Necessary and Proper clause by the founding fathers?

Answer 1

Hamilton - “broadly; broad means to achieve its relatively circumscribed ends” (don’t curtail gov’t powers)

Jefferson - “narrowly; anything convenient could be necessary and then congress would be limitless”

Madison - “we shouldn’t have even put it in the damn thing because whenever an end is required a means will be authorized. The power to do a thing means the power to make it happen is implied.”

Question 2

The standard of review to determine what powers congress has (3 parts)

Answer 2

1. the end must be legitimate and within the scope of the constitution
2. it must be appropriate and plainly adapted to reach the desired end
3. it can’t already be prohibited and must be consistent with the letter and spirit of the constitution

Question 3

When is something Necessary and Proper

Answer 3

when the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power

Question 4

What rule do we get from Gibbons v. Ogden? (Steamboat license case)

Answer 4

if a state and congress both pass conflicting laws regulating interstate commerce, the federal law governs pursuant to Congress’s constitutional grant of power to regulate interstate commerce

Question 5

What commerce power does congress have?

Answer 5

1. power to make rules and regulations and power to ban
2. enumerated powers
3. implied powers to regulate things that are an instrumentality of commerce
4. Necessary and Proper

Question 6

What is Congress required to do before enacting a facially discriminatory rule?

Answer 6

seek less invasive options

Question 7

Champion v. Ames Rule (Lottery Case)

Answer 7

congress has the power to regulate commerce as it wants and prohibit it as it sees fit even if only for moral reasons (we don’t care about their motive)

Question 8

Limitations on the Commerce Clause through 1936

Answer 8

1. Direct, Indirect test applied

2. federal regulatory power ceases when interstate commercial intercourse ends

Question 9

Expansion of Commerce Power after 1936

Answer 9

1. Manufacturing in itself is not commerce, (once manufactured goods are shipped they become commerce)
2. the power of congress to regulate intrastate commerce to the extent activities that are intrastate have a close and substantial effect on commerce
3. Our conclusion is unaffected by the 10th amendment - if the intrastate activity has a substantial (can be taken in the aggregate) effect on commerce and congress chooses a reasonable means to the attainment of its end, then it is constitutional

Question 10

New Commerce Clause Limitations 21st Century

Answer 10

1. Lopez test

2. We don’t aggregate crime because it is not an economic activity

Question 11

What is the Lopez Test?

Answer 11

(1) Congress may regulate under the Commerce Clause:

1. The use of channels of interstate commerce
   o The “channels of interstate commerce” which Congress may regulate
   under its commerce power are the routes through which commerce
   travels, or the interstate transportation route through which persons
   and goods move. The term includes highways, railroads, navigable
   waters, airspace, telecommunications networks, including the
   Internet, and national securities markets
2. The instrumentalities of interstate commerce
   o Instrumentalities of interstate commerce has been defined as the
   people and things themselves moving in commerce and the means by
   which people or things in commerce move. The term includes
   automobiles, airplanes, boats, railroads, pages, telephones, cell
   phones, the Internet, and shipment of goods.
3. Activities that have a substantial relationship to interstate
   commerce
   o Within this third category, the activity must
   a. Substantially affect interstate commerce, AND
   b. The regulated activity must be economic activity

Question 12

What can/cannot the commerce clause regulate?

Answer 12

Can: action
- ex. how much wheat you grow because it translates to how much you buy

Cannot: inaction
- ex. forcing a person to buy health insurance

Question 13

10th Amendment

Answer 13

anything not expressly enumerated in the constitution is reserved for the states; also, federal government cannot induce state officials to carry out a federal law

Question 14

What limits are on Wickard? (lopez test)

Answer 14

1. crime is not economic
2. there’s a lack of express jurisdictional elements - no limits jurisdictions
3. Lack of express findings - if congress hasn’t said this is how it affects interstate commerce
4. attenuated link to commerce

Question 15

Why did we create the commerce clause?

Answer 15

to stop state jealousies and create a national economy

Question 16

What are the countervailing concerns to the commerce clause?

Answer 16

10th amendment and federalism

Question 17

When are taxes not permissible?

Answer 17

When they are imposed as a penalty as defined by the constitution (its up to SCOTUS)