Powers of Congress Flashcards
Where are Congress’s enumerated powers found?
Art. I §1
Where is the Necessary and Proper clause found?
Art. I §8
What does the Necessary and Proper Clause do?
Allows Congress to select appropriate means once it has resolved that an objective is within C’s enumerated powers
What is state residuary power?
Says states can do whatever they want unless it is expressly prohibited by the Constitution
Who is the ultimate sovereign?
The People, not states, not the nation
What case sets out the basic framework for N & P clause?
McCulloch v. Maryland
What case said that people, not states are the ultimate sovereign?
McCulloch v. Maryland
What does “necessary” and “proper” mean?
There is some rational connection between the means and the end. “Reasonable” and “appropriate.”
Example of “necessary”
A criminal law against vandalizing mailboxes. Not an enumerated power, but ____ to establish a postal system.
How does the N & P clause empower C?
gives C power rather than limiting it. C may choose any means not prohibited by the Const. to carry out its lawful authority
What did McCulloch and Maryland achieve?
Case expanded the power of the N & P clause.
What does Art. I do?
Enumerates C’s powers and some implicit powers (N & P)
Where is the Commerce Power found?
Art. I §8
What does the Commerce Power do?
grants C power to regulate states and private individuals’ interstate commercial and economic activities
What is the positive side of the commerce power?
the affirmative grant of power to C to regulate commerce among the states
What is the dormant side of the commerce power?
the implicit prohibition of state or local laws that discriminate against or unduly burden interstate commerce
What triggered the change in SCOTUS’s understanding of the commerce clause?
The switch in time that saved 9
What was the Pre-New Deal understanding of the commerce clause?
laissez-faire mentality and judicially unmanageable standards
How to analyze Commerce Power question
- identify what is being regulated
- does it regulate the use of channels of interstate commerce OR
- the instrumentalities of, or persons of things in interstate commerce OR
- does it regulate activities substantially affecting
- AND is the regulation N & P to achieve a broader regulatory scheme?
What did Wickard v. Fillburn decide?
C can regulate by way of the Commerce Power, activities that are purely intrastate, non-commercial, and non-economic that undermine C’s broader regulatory scheme
Principle of aggregation
C regulate activity that taken in isolation, doesn’t substantially affect interstate commerce, but multiple iterations of the activity would.
Analysis of aggregation principle
- look at all similarly situated individuals and determine if, multiple iterations would substantially effect interstate commerce
- apply rational basis for finding the substantial effect (quite deferential)
The Civil Rights Act of 1964
Act that eliminates discrimination in places of public accommodation
What did Heart of Atlanta Motel decide?
C can prohibit discrimination in places of public accommodation b/c it hurts interstate travel
What are the categories of regulable activity under Commerce Clause
- channels of interstate commerce
- instrumentalities of, or persons or things in, interstate commerce
- activities substantially affecting interstate commerce
channels of interstate commerce
how people or goods get from one state to another
examples of channels of interstate commerce
waterways, roads, RR, planes, telecommunication, internet
instrumentalities of interstate commerce
the thing that does the transportation of commercial goods or persons
examples of instrumentalities of interstate commerce
cars, planes, railroad safety, trains
activities substantially affecting interstate commerce
economic or commercial activity
Analysis of activity “substantially affecting interstate commerce”. Substantial affects test
- Is the activity economic or commercial in nature?
a. viewed in the aggregate
b. If not, view as individual instance - Congressional findings?
a. can be persuasive - An attenuated connection to interstate commerce?
- Is it an area in which states have historically been sovereign?
- If none of the above, is the activity an integral part of a broader regulatory scheme?
a. reasonable?
Jurisdictional hook/ jx element
provision of statute limiting its applicability to things that have traveled intrastate
What did US v. Morrison demonstrate?
Congressional findings may not be important or very persuasive.
Importance of substantial affects test–connection btwn regulated activity cannot be too tenuously connected to broader regulatory scheme affecting commerce
Can noncommerical, non-economic activity be aggregated?
No. Under Mossion
What did Gonzales v. Raich demonstrate?
C has a rational basis for regulating intrastate, noncommercial activity when the activity would undermine the effectiveness of a broader regulatory scheme.
What does the minimum essential coverage/ individual mandate provision in NFIB v. Sebelius show in relation to the commerce clause?
C cannot regulate inactivity and where individuals have not voluntarily entered a market
Where is the taxing power found?
Art. I §8, cl. 1
What may C tax?
Whatever C finds important for the “General Welfare” of the nation
What are the limits on C’s taxing power?
May not use as a means of regulation or punishment
Analysis: taxation or regulation?
- who pays the penalty? –is there a requisite mindet
- where is the penalty codified?
- who enforces the penalty?
- how is the penalty assessed? –household size, income, etc
What does the minimum essential coverage/ individual mandate provision in NFIB v. Sebelius show in relation to the taxing power?
Case shows when individuals pay a penalty to the Treasury dept, the penalty is Const under C’s taxing power
Does C’s intent matter when levying taxes?
No. As long as it is imposed to raise revenie
What does Drexel Furniture show?
Case shows when there is a scienter requirement (punishment) and the penalty is paid to a department other than the Treasury/ IRS= regulatory penalty and unconstitutional use of C’s taxing power
Where is the spending power found?
Art. I §8
Conditional spending analysis
- “general welfare” of the nation or textual requirement
- unambiguous
- germaneness
- independent const. bar
- coercion
What is the level of scrutiny for the “general welfare” questions.
Rational basis–cts are deferential to C’s findings
unambiguous–conditional spending
terms must be unambiguously known, states can exercise a choice
germaneness
conditions must be sufficiently related to the purpose of the spending program
coercion–conditional spending
must give states more than an illusory choice
What did South Dakota v. Dole show?
link between highway safety and the drinking age of 21, paired with a small withholding of funds for states that do not comply is permissible under the Spending Power
What does the Medicaid provision in NFIB v. Sebelius show in relation to the spending power?
Case shows withholding huge percentage of funds for existing program is coercive
What does §5 of the 14th Amend do ?
mini N & P clause. Gives C the power to enforce the 14th amendment
Doctrinal test of 14th Amend §5
legislation must be “congruent” and “proportional” to the const. violations C seeks to remedy or prevent
Who may C regulate under its §5 powers of 14th Amend?
only state action, not private individuals
Where is the treaty power found?
Art II §2
What does C have to do with treaties?
Senate must ratify treaties
What power does C have under the treaty power?
the N & P allows C to enact laws to support treaties. Increased unenumerated powers
Over what laws do treaties prevail?
over state
if conflict w/ fed law, last in time controls
What did Missouri v. Holland demonstrate?
Const. doesn’t limit C to its enumerated powers when implementing a treaty, but you can’t ignore a specific const. provision
What does Reid v. Covert demonstrate?
C cannot enact laws under treaty power that violate express prohibitions in the Const.
Limits to C’s anti-commandeering principle
- only applies to federal laws regulating the states in their sovereign capacities, as regulators of their inhabitants
- only forbids fed laws that require the states to take affirmative acs, not prohibitions
- does not forbid C from enticing states
Treaty power analysis
- is there some limit on the proper subject matter of a treaty?
- how necessary must an enacted law be to the implementation of a treaty?
- Can the making a treaty enable C to enact legislation that would otherwise exceed its enumerated power?
commandeering or preemption?
- are states and private citizens regulated equally? No, that;s ok.
- Is C compelling a state to take affirmative action? Not ok.
- Is C prohibiting a state from permitting various private acts? That’s ok.
What did Printz v. US demonstrate?
case shows anticommandeering applies to local govt as well as to states
