Power of Congress

Question 1

Commerce Clause

Answer 1

The commerce clause gives Congress broad regulatory authority over most activities involving two or more states.

This includes the power to regulate:

1) the channels of interstate commerce (e.g., airports)
2) the instrumentalities of interstate commerce (e.g., planes)
3) people and things moving in interstate commerce (e.g., commercial shipments) and
4) in-state activities that, singly or in the aggregate, substantially affect interstate commerce (presumed when activity is economic in nature).

Question 2

Congress’s Taxing & Spending Powers (breakdown)

(U.S. Const. art. I, sec. 8, cl. 1)

Answer 2

TAXING:

Direct taxes – must be:

• apportioned evenly among states AND
• reasonably related to revenue raising

Indirect taxes – must be:

• uniformly applied in every state AND
• reasonably related to revenue raising

Export taxes – always unconstitutional

SPENDING:

Funds must be spent for general welfare

Conditions on receipt of funds must:

i) be clearly stated & unambiguous
ii) be reasonably related to federal interest in funded program
iii) not require states to engage in unconstitutional activity and
iv) not unduly coerce states into accepting

Question 3

Taxing and Spending Clause

Answer 3

The taxing and spending clause has been broadly interpreted to give Congress the power to spend for the general welfare—i.e., for any public purpose—not just to carry out its other enumerated powers.

Question 4

Privileges & Immunities Clause

Answer 4

Article IV

State discriminates against citizens of other states & interferes with rights of state citizenship:

• Travel/reside in state
• Pursue employment
• Practice commercial trade/business
• Own/transfer property
• Seek medical services
• Civil liberties
• Creditor’s rights
• Tax exemptions

Fourteenth Amendment

State interferes with its citizens’ rights of nationalcitizenship:

• Interstate travel
• Assemble peacefully
• Vote for national offices
• Enter public lands
• Petition Congress for redress of grievances
• Protection when in custody of U.S. Marshal

Question 5

Privileges & Immunities Clause

the comity clause

Answer 5

The Article IV privileges and immunities clause (i.e., the comity clause) prohibits states from discriminating against citizens of other states by denying them a right of state citizenship.

This includes the right to practice a commercial trade or business—but not to pursue a recreational activity.

Question 6

What constitutes an “Undue Burden”?

• Dormant Commerce Clause*
• Pike Balancing Test*

Answer 6

The commerce clause gives Congress broad power to regulate interstate commerce. The negative implication of this clause (i.e., the dormant commerce clause) is that states cannot unduly burden interstate commerce.

An undue burden can arise from a discriminatory law—i.e., a law favoring in-state over out-of-state economic interests—or a nondiscriminatory law.

Under the Pike balancing test, a nondiscriminatory law will be upheld unless the challenger shows that the law’s burden on interstate commerce clearly exceeds its local benefits.

Question 7

Dormant Commerce Clause

nondiscriminatory state law

Answer 7

Under the dormant commerce clause, a nondiscriminatory state law is valid unless the challenging party shows that the law’s burden on interstate commerce clearly exceeds its local benefits.

Question 8

Does Congress have plenary (i.e., exclusive) authority over immigration and naturalization?

Answer 8

YES

Under Article I of the Constitution, Congress has plenary (i.e., exclusive) authority over immigration and naturalization, so federal laws based on U.S. citizenship are presumptively constitutional.

To rebut this presumption and show that such a law violates the equal protection component of the Fifth Amendment, a challenger must show that the law is not rationally related to a legitimate government interest—i.e., that the law is arbitrary or unreasonable (rational basis review).

Question 9

What level of scurtiny must federal laws based on U.S. citizenship satisfy?

Answer 9

Rational Basis Review

The equal protection component of the Fifth Amendment requires federal laws based on U.S. citizenship to satisfy rational basis scrutiny. This level of scrutiny places the burden on the challenger to prove that the law is not rationally related to a legitimate government interest.

Question 10

Tenth Amendment limitation on Congress’s power to regulate interstate commerce

Anti-Commandeering

state immunity from federal law

Answer 10

Congress has broad power to regulate interstate commerce.

But the Tenth Amendment limits this power by prohibiting Congress from requiring state or local governments to:

(1) enforce a federal law OR
(2) enact a state or local law.

Question 11

Enumerated Congressional Powers

Answer 11

1. ^{_{Taxing & spending}}
2. ^{_{Interstate & foreign commerce}}
3. ^{_{War, armed forces, militia}}
4. ^{_{Coin & borrow money}}
5. ^{_{Immigration & naturalization}}
6. ^_Mail
7. ^{_{Copyright & patent laws}}
8. ^{_{Federal courts}}
9. ^{_{District of Columbia}}
10. ^_Bankruptcy
11. ^{_{Rules concerning captures}}

Question 12

Militia Clauses

When can the President call state National Guard into action without the approval of the state governor?

Answer 12

Congressional legislation must stem from Congress’s enumerated powers.

Under the militia clauses, Congress has the power to authorize the President to call state National Guard units into action without the approval of the state governor to:

i) execute federal laws,

ii) suppress insurrections, or

iii) repel invasions.

• This power extends to the use of state National Guard units in domestic situations and non-emergency circumstances.

Question 13

Does the commerce clause give Congress plenary authority to regulate foreign commerce?

Answer 13

YES

The commerce clause gives Congress plenary (i.e., exclusive) authority to regulate foreign commerce—including the power to impose tariffs (i.e., taxes) on imported goods.

Congressional legislation must stem from Congress’s enumerated powers.

The commerce clause gives Congress plenary (i.e., absolute) authority to regulate foreign commerce.

• This authority includes the power to impose tariffs (i.e., taxes) on imported goods like agave.

Question 14

Enclave Clause

Answer 14

Any legislation enacted by Congress must stem from its enumerated powers.

The enclave clause gives Congress plenary (i.e., exclusive) legislative power over the District of Columbia.

Question 15

Taxing and Spending Clause

Export clause

Answer 15

The taxing and spending clause gives Congress broad power to tax and spend for the general welfare (i.e., any public purpose).

However, this power is not unlimited and must be exercised in compliance with other constitutional provisions—including the export clause.

The export clause prohibits federal taxation of:

1) exported goods, which are goods leaving the U.S. and shipped to foreign countries and
2) services and activities closely related to the export process.

Question 16

Conditional Federal Funding

Article I, Section 8 Spending Clause

Answer 16

The taxing and spending clause gives Congress broad discretion to spend for the general welfare (i.e., any public purpose), such as public education.

Congress can use its spending power to incentivize states to adopt federal policies by placing appropriate conditions on the receipt of federal funds.

A condition is appropriate when it:

1) is clear and unambiguous
2) is reasonably related to the purpose for which the funds will be expended
3) does not require recipients to engage in unconstitutional activity and
4) is not unduly coercive.

Question 17

Is asking states to observe a holiday, such as Thomas Edison’s birthday as Inventor’s Day, reasonably related to public education and thus constitutional?

Answer 17

YES.

Example: Congress imposed a condition on states’ receipt of 3% of federal education funds that unambiguously requires recipients to observe the birthday of Thomas Edison as Inventors’ Day in public schools. Observance of Inventors’ Day is reasonably related to public education, and asking states to observe a holiday in school is not unconstitutional.

Furthermore, the potential loss of only 3% of federal education funds is not so great as to be coercive.* Therefore, the taxing and spending clause provides the best support for the statute’s constitutionality.

*A condition is unduly coercive if it amounts to a “gun to the head” of a state—e.g., a condition that withholds 10% of a state’s overall budget.

Question 18

The Nondelegation Doctrine

Answer 18

The nondelegation doctrine prohibits Congress from delegating its exclusive legislative powers (e.g., making or repealing laws).

But Congress can delegate its incidental powers (e.g., rule-making authority) to agencies in the executive branch if it provides an intelligible principle to guide the agency—i.e., a clear statement defining:

1) the policy Congress seeks to advance (e.g., improve the treatment of prisoners in the federal prison system)
2) the agency to carry out that policy (e.g., the Federal Bureau of Prisons) and
3) the scope of that agency’s authority (e.g., issue regulations that reform the hiring requirements in the federal prison system).

Question 19

Can a party challenge a court’s award of expert fees in lawsuits for violations of a valid statute enacted by Congress that awards federal funds to schools, but that statute is silent about whether the receipt of those funds is conditioned on awarding of expert fees to parties that prevail in lawsuits for violations of the statute?

Answer 19

YES.

The spending clause gives Congress broad power to spend for the general welfare (i.e., for any public purpose).

Congress may use its spending power to incentivize state or local governments to act in certain ways by placing conditions on their receipt of federal funds.

But those conditions are binding only if they are:

1) clearly stated and unambiguous so that potential recipients may make an informed decision
2) reasonably related to federal interest in funded program
3) do not require states to engage in unconstitutional activity
4) do not unduly coerce states into accepting.

Question 20

Commerce Clause

What do courts consider when determining whether activities have a substantial effect on interestate commerce that warrants regulation by Congress?

Answer 20

The commerce clause grants Congress broad power to regulate interstate commerce—including activities(even in-state activities) that substantially affect interstate commerce.

When determining if activities have a substantial effect on interstate commerce that warrants regulation by Congress, courts consider whether:

1) the activities are economic in nature (if so, a substantial effect is presumed)
2) the regulation has a jurisdictional element that limits its reach to activities with a direct connection to or effect on interstate commerce
3) there are express congressional findings concerning the activities’ effect on interstate commerce AND
4) there is a strong link between the regulated activities and that effect.

Question 21

What do courts consider to determine if Congress can regulate an activity?

Answer 21

To determine if Congress can regulate an activity, courts consider whether

(1) the activity is economic in nature,
(2) the regulation contains a jurisdictional element,
(3) Congress made express findings on the activity’s effect on interstate commerce, and
(4) there is a strong link between the activity and that effect.

Question 22

Legislative action, absent narrow exceptions, must be:

Answer 22

Article I entrusts Congress (i.e., the House of Representatives and the Senate) with the power to take legislative action.

Action is legislative when its purpose or effect is to alter the legal rights or duties of persons outside of Congress.

Legislative action, absent narrow exceptions, must be:

1) approved by both houses of Congress (i.e., bicameralism) AND
2) presented to the President for approval or disapproval (i.e., presentment).

Question 23

Unconstitutional Legislative Veto

Answer 23

Through this process, Congress can delegate some of its powers (e.g., rulemaking) to federal executive agencies.

• But once Congress does so, it cannot interfere with the agencies’ functions unless it again complies with the legislative-action process.

Any attempt to bypass this process amounts to an “unconstitutional legislative veto.”

Question 24

Can Congress explicitly authorize conduct that would otherwise violate the dormant commerce clause?

Answer 24

YES.

Congress can exercise its broad commerce power to explicitly authorize conduct that would otherwise violate the dormant commerce clause.

However, even when Congress has authorized conduct that would otherwise violate the dormant commerce clause, states must comply with other constitutional provisions when engaging in that conduct.

This includes the Fourteenth Amendment equal protection clause, which subjects discriminatory state taxes to rational basis review.

Question 25

The dormant commerce clause prohibits states from discriminating against interstate commerce unless:

Answer 25

A discriminatory state law—i.e., one that favors in-state over out-of-state interests—will be deemed unconstitutional *UNLESS* the state proves that:

1) the law furthers an important or legitimate noneconomic state interest (e.g., health, safety) AND
2) there is no reasonable, nondiscriminatory alternative to achieve that interest.

Question 26

Can Congress revoke the U.S. citizenship of any U.S. citizen without his/her consent?

Answer 26

NO. Unless it was obtained by fraud or in bad faith.

Congress has plenary (i.e., exclusive) power to regulate naturalization—i.e., the process through which noncitizens obtain U.S. citizenship. But the Fourteenth Amendment prohibits Congress from revoking the U.S. citizenship of any U.S. citizen without his/her consent unless that citizenship was obtained by fraud or in bad faith.

Question 27

Delegation

what constitutes “intelligible guidelines”?

Answer 27

When Congress delegates its legislative power to federal officers or agencies in the executive branch, it must provide them with intelligible (i.e., clear) guidelines.

Almost anything—even a brief or general statement—meets this standard, so Congress’s guideline to “investigate methods to preserve endangered species of fish” likely suffices.

Question 28

Permissible government restrictions on firearms

Answer 28

The Second Amendment—applicable to states and municipalities through the Fourteenth Amendment due process clause*—generally prohibits government interference with an individual’s right to possess and use firearms for a traditionally lawful purpose (e.g., self-defense in one’s home).

However, this right is not absolute.SCOTUS has stated that certain government restrictions on firearms are permissible, including:

1) banning unusually dangerous firearms (e.g., grenades)
2) imposing conditions and qualifications on commercial sales of firearms
3) forbidding the possession of firearms by felons and mentally ill individuals AND
4) prohibiting the open carry of firearms in certain areas (e.g., schools) or concealed carry of firearms in public.

Question 29

What standard of review applies to restrictions on the Second Amendment right to bear arms?

Answer 29

TRICK

SCOTUS has never determined whether rational basis or strict scrutiny review applies to restrictions on the Second Amendment right to bear arms.

Instead, such restrictions must not interfere with a traditionally lawful purpose for possessing and using firearms.

Question 30

Article IV Clauses

Answer 30

1. Full Faith & Credit:
   * States must recognize public acts, records & judicial proceedings of other states.
2. Privileges & Immunities:
   * States cannot deny rights of state citizenship to citizens of other states.
3. Property:
   * Congress can dispose of & regulate federal land/territories
4. Guarantee:
   * Federal government must guarantee states republican form of government & protect states from invasion.

Question 31

Article IV, § 3 Property Clause

Answer 31

The Article IV, section 3 property clause gives Congress complete power to dispose of and regulate federally owned land and territories.

This clause includes the power to regulate private property that affects federal public lands when such regulation is necessary to protect those lands—e.g., by prohibiting the erection of structures that completely enclose federally owned land.

Example: If federal farmland is surrounded by land owned by a cattle farmer, and in an effort to try and prevent the cattle from wandering, the farmer erects a fence on his property, which completely encloses the federal farmland. The federal government can sue the farmer and have his fence removed pursuant to the property clause.

Question 32

Suspensiono Clause of Article I, Section 9, Clause 2

Answer 32

Under the Suspension Clause of Article I, Section 9, Clause 2, a detainee retains the privilege to file a habeas corpus petition unless this privilege is suspended.

This clause applies to individuals detained in a territory over which the United States has sovereign control, even though such territory is outside the United States.

Question 33

Can Congress limit the right to habeas corpus by removing jurisdiction from federal courts?

Answer 33

NO.

While Congress may limit the jurisdiction of the federal judiciary, Congress may not exercise this power in a manner that violates the Constitution.

Accordingly, Congress may not limit the constitutional right to habeas corpus by removing jurisdiction from federal courts.

Although Congress generally has plenary power over aliens, this power is subject to the privilege to file a habeas corpus petition. Congress does have the power to limit the jurisdiction of the federal judiciary, but can’t violate the constitution.

Question 34

Ad valorem property tax

Answer 34

An ad valorem tax is based on the value of real or personal property and is often assessed at a particular time (e.g., tax day).

Such taxes, which may be imposed on the full value of the property, are generally valid, but a state may not levy ad valorem taxes on goods in the course of transit (from the time the goods are delivered to an interstate carrier or begin their interstate journey until they reach their destination).

However, once the goods are stopped for a business purpose (i.e., obtain a “taxable situs”), they may be taxed.

**only direct taxes, such as ad valorem property taxes, are subject to the apportionment requirement**

Question 35

Article I, § 9, concerning direct taxes

Answer 35

Article I, Section 9 provides that “no . . . direct tax shall be laid, unless in proportion to the Census[.]”

Although there is dispute as to the types of taxes that are encompassed within the definition of a direct tax, a tax on real property interests is undisputedly a direct tax.

To satisfy the apportionment rule, a state with twice the population of another state would have to pay twice the tax, even if the more populous state’s share of the national tax base were smaller.

Question 36

Necessary and Proper Clause

Answer 36

The Necessary and Proper Clause enables Congress to enact laws that carry into execution a treaty that’s been negotiated by the President and ratified by the Senate in the exercise of their constitutional powers.

• Such laws are valid regardless of whether Congress has some other enumerated power that might be relevant—such as the Spending Power.