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Question 1

What are the different aspects of the scope of congressional power?

Answer 1

– express or enumerated powers
– implied powers
– delegation of powers

Question 2

What does it mean for Congress to have express or enumerated powers?

Answer 2

If a congressional legislation’s constitutionality is being questioned, it must have some relationship to a power specifically enumerated in the constitution. This means it must reasonably relate to an express grant of power. As long as it is reasonable for Congress to view a problem as connected to one of the constitutional grants of power, then the law is valid.

Question 3

What are the express powers that the constitution gives to Congress?

Answer 3

The power to:
– lay and collect taxes
– borrow money
– regulate commerce
– declare and conduct wars
– raise and support Armed Forces

Question 4

What are the implied powers that the constitution gives to Congress?

Answer 4

Under the Necessary and Proper Clause it says that implicit in the enumerated powers of the constitution there are a host of implied powers that allow Congress to enact legislation outside of its articulated powers so long as the enactment is reasonably related to those articulated powers. There just needs to be a nexus between the enumerated power and the means, and it cannot be tenuous, vague, or ambiguous.

I.e.: the enumerated constitutional power to coin money includes an implicit power to incorporate a national bank.

Question 5

What is the support for the necessary and proper clause that comes from Marshall?

Answer 5

“If the end is legitimate and within the scope of the constitution, all means that are appropriate and not prohibited can be employed to carry it into effect.“

Question 6

What are some examples of things that would be considered to be the implied powers of Congress?

Answer 6

Anything related to foreign relations, regulations of the Armed Forces and state militia, etc.

Question 7

All powers that are not delegated to the national government under the 10th amendment are what?

Answer 7

Kept by the states and the people

Question 8

What is the commerce clause?

Answer 8

Congress has the power to regulate commerce among the several states, with foreign nations, and with the Indian tribes. This means the federal government can regulate activities, persons, products, or services that cross state lines. This constrains state power. It relates to any activity that has a substantial effect on interstate commerce or involves the channels or facilities of it. This means that the federal government can discriminate or burden interstate commerce, and limits only apply to state or local regulations of interstate commerce.

Question 9

What does it mean that the power to regulate commerce is considered to be strictly concurrent?

Answer 9

States can act to exercise this power as long as their laws do not interfere with any right under the constitution or laws of the United States

Question 10

What is the rationale behind the commerce clause?

Answer 10

You don’t want the states to act against each other in terms of trade or trade barriers

Question 11

If regulated commerce in a state is completely internal and does not affect other states, does it fall under the commerce clause?

Answer 11

No

Question 12

What is commerce?

Answer 12

Intercourse that affects more states than one, including transportation, navigation, and sale of commodities

Question 13

What does it mean that the commerce clause is plenary?

Answer 13

It is complete in itself with no limits except those of the constitution. Congress decides what is interstate commerce, and if people do not like it, they can vote them out. This is a broad grant of power

Question 14

What does “among the several states“ mean under the commerce clause?

Answer 14

Commerce that concerns more than one state, or that is within a single state but affects other states. This is intercourse and traffic between state’s citizens and transportation of persons or property.

Ie: operating a commercial car ferry between two states, sailing a private boat from one state to another

Question 15

In what situations can congress regulate intrastate activities under the commerce clause?

Answer 15

They can regulate single-state activities that have a close and substantial relationship to or substantial effect on interstate commerce.

Elements:

• must be commercial in nature
• government needs a rational basis to believe they have a substantial impact on interstate commerce.

Question 16

What does it mean for something to be “commercial in nature“ under the commerce clause?

Answer 16

A commercial activity that involves the trade of: goods/services for money/something of value. Even if it isn’t commercial it can still be prohibited if it substantially affects interstate commerce.

Ie: the wheat case

Question 17

What are some examples of commercial activities that would fall under the commerce clause?

Answer 17

Service at a hotel or restaurant, mining, loansharking

Question 18

What are some examples of non-commercial activities that would not fall under the commerce clause?

Answer 18

Domestic violence, possessing a gun by a school, homegrown drugs for personal use

Question 19

Why would a canoe ride on an inland lake not be considered to be commerce among the states under the commerce clause?

Answer 19

Because although it involves navigation it is not among the states

Question 20

What things are included under the commerce clause that don’t seem like they would be?

Answer 20

– Regulating economic activity that isn’t per se commerce. I.e. manufacturing
- Wholly intrastate economic activity that has an aggregate substantial effect on interstate commerce