Powers Flashcards
What is the Necessary and Proper clause?
Article I, Section 8 grants Congress auxiliary power to make all laws necessary and proper for carrying into execution any power granted to any branch of the fed gov.
What is Congress’s taxing power?
Congress has the power to lay and collect taxes, imposts, and excises, but they must be uniform throughout the US
Direct taxes vs. indirect taxes
Indirect taxes (“privilege taxes,” like duties and excises) require geographic uniformity
Direct taxes (imposed directly on property or person) are seldom applied b/c of apportionment requirement (besides income tax, which is authorized by 16th Amendment)
When will tax measures be upheld?
- Bears some reasonable relationship to revenue production; OR
- Congress has the power to regulate the taxed activity
This is a broad and deferential standard
What is the Spending Power?
Article I, Section 8 grants Congress the power to spend to “provide for the common defense and general welfare.”
This spending may be for any public purpose, not just for accomplishment of enumerated powers.
This allows Congress to attach “strings” to government grants in areas even if it does not have power to regulate that area.
What is the Commerce Power?
Article I, Section 8 empowers Congress to “regulate commerce with foreign nations and among the several states, and with the Indian tribes”
Limits on Congress’s commerce power
The regulation must either:
- Regulate the channels of interstate commerce;
- Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; OR
- Regulate activities that have a substantial effect on interstate commerce
Standard for what falls under Congress’s commerce power
Congress can regulate any activity, local or interstate, that either in itself OR in combination with other activities has a “substantial economic effect upon” or “effect on movement in” interstate commerce
What is Congress’s War Power under the Constitution?
Article I, Section 8 gives Congress the power to:
i. declare war
ii. raise and support armies
iii. provide for and maintain a navy
iv. make rules for gov and regulation of armed forces, and
v. organize, arm, discipline and call upon the militia
When does Congress’s regulatory power extend into post-wartime periods?
- To remedy wartime disruptions; and
- To cope with “cold war” exigencies
- To continue legislation of veterans’ rights/limitations as long as the vets or their families are alive
Who has the power to review court-martial proceedings?
Generally, no fed or state courts allowed to review
But, in Habeas Corpus cases, Article III courts may make limited inquiry into (i) military court’s JX of the person and offense OR (ii) the validity of the court’s legislative creation
When may Congress deny habeas corpus review to aliens detained as enemy combatants?
When there is a meaningful substitute for HC review.
Jurisdiction of military courts
ALL offenses committed by persons who are members of the armed services, both when charged and at the time of the offense
What is the Militia Clause?
Article I, Section 8 gives Congress the power to authorize President to order members of National Guard units into federal service, even if not during a national emergency
What is Congress’s Investigatory Power?
It is an implied power that gives Congress the power to investigate to secure information as a basis for potential legislation or other official action (even if not directly pursuant)
What are the limits on Congress’s Investigatory power?
- Inquiry must be expressly or impliedly authorized by congressional house concerned (i.e. by statute or resolution creating investigatory committee)
- Witness’s rights (5th amendment, info requested must be relevant to inquiry, procedural due process)
What is Congress’s Property Power?
Article 4, Section 3 gives Congress the power to “dispose of and make all needful rules and regulations regulating the territory or other property belonging to the US”
Rules re: Eminent Domain
Under the 5th Amendment, Congress can’t take private property for public use without just compensation.
The federal taking must be for the purpose of effectuating an enumerated power under some other Constitutional provision.
What is Congress’s Bankruptcy Power?
Under Article I, Section 8, Congress can “establish uniform laws on the subject of bankruptcies throughout the US”.
This is nonexclusive and states can also legislate in this field, unless it conflicts with federal legislation.
What is the scope of Congress’s Postal Power?
Congress may validly classify and place reasonable restrictions on the use of the mail, but it may not deprive any citizen or group of citizens of the general mail privilege or regulate it in a way that abridges other Constitutional protections/freedoms.
What are resident aliens entitled to before they can be deported?
Notice and hearing
When may Congress take away the citizenship of any citizen?
Congress may not take away the citizenship of a native-born OR naturalized citizen without his consent.
A citizen’s intent to relinquish citizenship may be expressed with words or conduct.
What is Congress’s Admiralty Power?
Pursuant to the NAPC and Article 3’s grant of fed court JX over admiralty cases, Congress has the implied power to legislate in maritime matters.
This is plenary and exclusive, and it extends to all navigable waterways, even if not interstate.
What are the limits on Congress’s power to delegate its authority?
- The power cannot be uniquely confined to Congress
- The delegation must include intelligible standards for delegate to follow
- Separation of powers prevents Congress from keeping certain controls over certain delegates (e.g. removal of executive officer w/o impeachment)
- The delegate can’t interfere w/ exercise of fundamental liberty/right unless she can show she has the power to restrict this and her decision was in furtherance of that power
- Prosecution for violation of a regulation must be left to exec/judicial branches. Civil penalties by agencies are ok without prosecution in court.
What is the Speech or Debate Clause and its scope?
Article I, Section 6 provides that “for any speech or debate in either House, members of Congress shall not be questioned in any other place.”
Scope:
- This extends to congressional aides but not to state legislators.
- This covers conduct that occurs in the regular course of the legislative process and the motivations behind that conduct.
What is a legislative veto?
An attempt by Congress to overturn an executive agency action without bicameralism or presentment.
Legislative vetoes are invalid.
How may the President appoint ambassadors, public ministers, judges of the Supreme Court, and other officers of the US? What about inferior officers?
With the advice and consent of the Senate.
Congress may give (by law) the power to appoint inferior officers exclusively to the President, to the courts, or the heads of departments
Who may appoint a Special Prosecutor?
A special prosecutor with limited duties of investigating narrow range of persons and subject is an inferior officer, so Congress can vest the power to appoint him in the judiciary
What appointments may Congress make?
It may appoint its own officers to carry on internal legislative tasks (i.e. its staff)
What is the Recess Appointments Clause?
The President can make appointments for vacancy without Senate approval during any Senate recess of “sufficient duration” (Senate must declare the recess)
What is the President’s removal power?
The Constitution is silent on removal of appointees except judges.
However, the President can probably remove high level, purely executive officers at will without interference from Congress.
Congress may impose statutory limitations on power to remove all other executive appointees.
