Powers Of Congress Flashcards
What are the general powers of congress?
Just as the federal courts are courts of limited jurisdiction, the powers of Congress are not plenary or exclusive. B/c of the Tenth Amend, the fed gov’t may exercise only those powers specifically enumerated in the constitution, and state governments and the people retain any powers not mentioned in the Constitution. Any action by the federal government must be supported by a source of power originating in the constitution. Art I Sec 1 vests all legislative powers of the federal government in Congress.
Notes: Congress may change existing law and direct the change to be applied to all related pending actions.
there is no general federal police power.
What are the Congress’ power over commerce?
Art I Sec 8 Clause 3 of the Constitution is known as the commerce clause, and empowers Congress to regulate commerce with foreign nations, and among the several states and with the Indian Tribes.
The term commerce has been defined to include essentially all activity (transportation, traffic, transmission of gas, electricity, mail, TV, radio and telegraph) including two or more states.
What is Congress’ power over interstate commerce?
Congress has the power to regulate the CHANNELS, INSTRUMENTALITIES, and any activity that SUBSTANTIALLY AFFECTS interstate commerce.
Channels: waterways, highways, airways, etc
Instrumentalities: cars, trucks, ships, etc.
An activity that substantially affects interstate commerce cannot be regulated to the extent that it would infringe upon any other constitutional right.
BUT, the power of Congress over commerce is construed very broadly. So acts of Congress seeking to prohibit or restrict the entry of persons, products and services into the stream of interstate commerce have all been allowed. Congress can also regulate the interstate movement of kidnap victims stolen vehicles and telephone transmissions.
What is the “Substantial Economic Effect” rule?
In the context of the powers of congress to regulate interstate commerce, congress has the power to regulate any activity, intra- or interstate, that in and of itself or in combination with other activities has a “substantial economic effect upon” or “effect on movement in” interstate commerce.
What is the aggregation rule in the “substantial economic effect” test?
Under Gonzalez v Raich, where Congress could regulate the growth and personal use of Marijuana even if it never entered interstate commerce, commerce can still regulate an activity that does not have a direct economic impact on interstate commerce AS LONG AS:
There is a rational bases for concluding that the total incidence of the activity in the aggregate substantially effects interstate commerce. (What if every farmer did it?)
What is Congress’ power to regulate interstate activities that are not obviously economic?
When Congress wishes to regulate non-economic activity, it is limited to some degree by the principals of federalism, especially when the regulation involves an area of traditional state concern. SO:
The non-economic activity must have a substantial economic effect on state commerce (ACA mandate struck down under interstate commerce authority, also: damages for domestic violence victims struck down and regulating possessing a firearm near a school struck down)
what is Congress’ powers over taxation and spending? (Generally)
Art I Sec 8 provides that Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”
Note: look for keyword ‘appropriation’ in exams
What is Congress’ Art I Sec 8 Taxation power?
A tax by Congress will generally be upheld if:
- It has a Reasonable Relationship to Revenue Production, OR
- Congress has the power to regulate the activity being taxed (subject to certain limits)
SO: ACA mandate upheld as merely a tax and therefore within Congress’ power.
Is Congress’ power to raise revenue through taxes plenary? why?
Yes, Art 1 Sec 8 give plenary (exclusive) power to Congress to raise revenue through the imposition of taxes. The gov’t does not have to prove that the tax is necessary to any compelling gov’t interest. Instead, the General Welfare clause (as it is know), has been interpreted to permit Congress to exercise its power to tax for any public purpose.
SAME for spending.
How is the ‘uniformity’ clause of the General Welfare clause interpreted?
All federal taxes must be uniform, and uniform has been interpreted to be geographical uniformity only. The product or activity at issue must be identically taxed in every state in which it is found.
A tax can still be uniform even if there are differences in state law, such as in Fernandez we here a tax on community property is valid even though not all states have community property.
What is a direct tax and when are they allowed?
A direct tax is on imposed directly on property or person, such as an ad valor employee property tax. Direct taxes must be distributed throughout the states and the population according to the census equally. That would be really hard to do, so Congress doesn’t really try to do it. Also, the court is reluctant to find anything a direct tax. The 16th amendment independently allows for the income tax without apportionment throughout the states.
What is an export tax and what are the rules?
An export tax is not allowed under Article I, sections 9 and 10. In other words, goods exported to foreign countries may not be tax for that reason alone by Congress or any of the states.
What are Congress’ spending powers and how are they limited?
Congress has the power to spend for the ‘general welfare’ under the General Welfare clause. The general welfare is any public purpose, not just to pursue other enumerated powers (like funding nomination conventions and campaign funding).
And where there are areas that Congress cannot directly regulate, it can use its spending power to accomplish such regulation indirectly through conditional funding (highway funds in exchange for drinking age).
BUT congress cannot impose unconstitutional conditions like tying the Ten Commandments to Medicare funding.
What is the basis of Congress’ war and defense powers?
Article 1, Section 8 gives congress the power to:
Declare War Raise and Support Armies Provide and maintain a Navy Regulate and Govern armed forces Provide for the organizing of a militia
What is the scope of Congress’ powers when providing for the national defense?
Congress has very broad powers under the war and defense powers. Congress may take whatever action it deems necessary to provide for the national defense in BOTH wartime and peacetime.
Upheld: draft, selective service; wage, price and rent control of the civilian economy during and after war; excluding civilians from restricted areas
what is the authority for and scope of military courts and tribunals?
Under Art 1 Sec 8 as well as the Necessary and Proper clause, Congress can establish military courts and tribunals.
Military tribunals may try enemy soldiers, enemy civilians and current members of the armed forces, but NOT U.S. civilians.
Military tribunals are not Art III courts, so not al Constitutional protections apply
What we the rights of citizen enemy combatants?
U.S. citizens who are captured and held as ‘enemy combatants’ are entitled, as a matter of due process, to contest the factual basis of their detention before a neutral decision maker.
What are the rights of all persons held in a territory over which the US has sovereign control?
Under the Suspension Clause of Art I, Sec 9:
All persons held in a territory over which the U.S. has sovereign control are entitled to have as corpus (or similar) review of the basis of their detention, unless the general privilege of habeas corpus has been suspended.
Tell me about the national guard
The president has the authority to order units of the national guard into federal service without the consent of the governor of the respective state. No national emergency is required, though that is generally when the National Guard is called into action.
What is authority for Congress’ investigatory power?
Congress does not have an express power to investigate, but the Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate.
What is the scope of Congress’ investigatory power?
The investigatory power may extend into any matter with a ‘legitimate legislative sphere.’ ‘
Also, under the Speech and Debate clause no members of congress can be questioned for speech or debate that occurs in either house during a session that relates to the business before the chamber. In other words, this clause provides absolute immunity from judicial interference.
What are witness’ rights when questioned by Congress?
When questioned by Congress, a witness is entitled to procedural due process (presence of counsel) and the privilege against self-incrimination.
A subpoenaed witness who fails to appear or refuses to answer questions may be cited for contempt.
What is Congress’ property power?
Article IV Sec 3 gives Congress power to dispose of and make all needful rules and regulations respecting the territory of other property belonging to the US.
There is no limit to Congress’ power to dispose of property, but in order to TAKE private property for the public use Congress give just compensation and be acting to effectuate an enumerated power.
What is Congress’ postal power?
Congress has the exclusive power to “establish post offices and post roads” under Art I sec 8.
Congress may also establish reasonable restrictions on the use of the mail, like no obscene or fraudulent mail.
However, the postal powers may not be used in any way to limit any right guaranteed by the constitution.
