Powers Of Congress

Question 1

What are the general powers of congress?

Answer 1

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.

Question 2

What are the Congress’ power over commerce?

Answer 2

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.

Question 3

What is Congress’ power over interstate commerce?

Answer 3

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.

Question 4

What is the “Substantial Economic Effect” rule?

Answer 4

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.

Question 5

What is the aggregation rule in the “substantial economic effect” test?

Answer 5

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?)

Question 6

What is Congress’ power to regulate interstate activities that are not obviously economic?

Answer 6

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)

Question 7

what is Congress’ powers over taxation and spending? (Generally)

Answer 7

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

Question 8

What is Congress’ Art I Sec 8 Taxation power?

Answer 8

A tax by Congress will generally be upheld if:

1. It has a Reasonable Relationship to Revenue Production, OR
2. 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.

Question 9

Is Congress’ power to raise revenue through taxes plenary? why?

Answer 9

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.

Question 10

How is the ‘uniformity’ clause of the General Welfare clause interpreted?

Answer 10

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.

Question 11

What is a direct tax and when are they allowed?

Answer 11

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.

Question 12

What is an export tax and what are the rules?

Answer 12

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.

Question 13

What are Congress’ spending powers and how are they limited?

Answer 13

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.

Question 14

What is the basis of Congress’ war and defense powers?

Answer 14

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

Question 15

What is the scope of Congress’ powers when providing for the national defense?

Answer 15

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

Question 16

what is the authority for and scope of military courts and tribunals?

Answer 16

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

Question 17

What we the rights of citizen enemy combatants?

Answer 17

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.

Question 18

What are the rights of all persons held in a territory over which the US has sovereign control?

Answer 18

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.

Question 19

Tell me about the national guard

Answer 19

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.

Question 20

What is authority for Congress’ investigatory power?

Answer 20

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.

Question 21

What is the scope of Congress’ investigatory power?

Answer 21

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.

Question 22

What are witness’ rights when questioned by Congress?

Answer 22

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.

Question 23

What is Congress’ property power?

Answer 23

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.

Question 24

What is Congress’ postal power?

Answer 24

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.

Question 25

What is Congress’ general powers over aliens?

Answer 25

Congress, under Fiallo v Bell has plenary power over aliens. Aliens have no right to enter the U.S. and may be refused entry for reasons such as their political beliefs.

However, if the alien is already in the United States, Congress’ power is constrained by the Due Process clause. Therefore, an alien may be removed, but only after notice and a removal hearing.

Question 26

What is Congress’ power over the naturalization process?

Answer 26

Congress has exclusive authority over naturalization. Art. I Sec 8 authorizes Congress to “establish a uniform rule of naturalization.”

For instance, children born abroad with US citizen parents are not automatically entitled to U.S. citizenship. Congress can grant citizenship conditioned on the child’s return to the U.S. within a specified timeframe or for a specified duration.

Question 27

Under what circumstances can citizenship be taken away?

Answer 27

The right of national citizenship in the 14th amend prevents Congress from taking away the citizenship of any citizen without her consent, unless that citizenship was obtained by fraud or in bad faith.

So: can’t strip for voting in another country’s election, but can strip for lying willfully on an application for naturalization.

Question 28

What are other other Art. 1 powers?

Answer 28

Congress has power over bankruptcies, maritime matters, coining of money, fixing of weights and measures, and patents and copyrights.

Question 29

What is Congress’ power over the District of Columbia?

Answer 29

Art I sec 8 provides that Congress shall have the power to legislate freely regarding Washington DC

Question 30

What is the Elections Cluase?

Answer 30

Art I Sec 4 establishes that “the times, places and manner of holding elections for Senators and Representatives shall be proscribed by each state legislature, but Congress may make or alter such regulations.

The elections clause explicitly empowers Congress to override state laws concerning federal elections.

Question 31

What is the Necessary and Proper clause

Answer 31

Congress is given the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government.

The necessary and proper clause is not an independent source of powers, but it permits Congress’ otherwise designated authority to be exercised fully.

NOTE: because the Necessary and Proper clause is not an independent source of power, it is not a correct answer choice by itself unless it carries into effect another enumerated power.

Question 32

what is Congress’ power to enforce the Thirteenth amendment?

Answer 32

Like the 14th and 15th amend, the 13th contains a provision that authorizes Congress to pass “appropriate” legislation to enforce the civil rights guaranteed by those amendments.

The 13th bans slavery, and Congress has the power to adopt legislation rationally related to eliminating racial discrimination as it is among the ‘badges and incidents’ of slavery.

Such power has been interpreted broadly to Congress to regulate both private action AND government action, including racial discrimination by private housing sellers, private schools, and private employers.

NOTE: this is the only amendment that authorizes Congress to regulate purely private conduct.

Question 33

what is Congress’ power to enforce the 14th amendment?

Answer 33

Like the 13th and 15th, the 14th contains a provision that authorizes Congress to pass ‘appropriate legislation’ to enforce the civil rights guaranteed by those provisions.

the 14th amendment is the Equal Protection and Due Process amendment.

The enabling clause (section 5) permits Congress to pass legislation to enforce the existing rights protected by the amendment, but DOES NOT ESTABLISH NEW ONES. Only the Supreme Court can establish new rights under the separate of powers doctrine.

In enforcing such rights, there must be CONGRUENCE AND PROPORTIONALITY between the injury to be prevented or remedied and the means adopted to that end. So in Boerne v Flores the Religious Freedom Restoration Act was held invalid for failure to show widespread religious discrimination and for disproportion to any purported remedial goal.

Congress may override state government action that infringes upon 14th amend rights, but it may not under this amendment regulate wholly private conduct.

In the exercise of 14th amend powers Congress can override the Eleventh Amend immunity of states.

Question 34

What is Congress’ peer to enforce the 15th amendment?

Answer 34

Like the 13th and 14th, the 15th amend contains a provision that authorizes congress to pass “appropriate legislation” to enforce the civil rights guaranteed in those amendments

The fifteenth amendment prohibits both the state and federal governments from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude. The courts have interpreted that vote to include the right to have that vote meaningfully counted.

Question 35

Does the constitution have anything to say about the qualification of members of Congress?

Answer 35

Yes, Art I sets forth the qualifications, which cannot be altered by Congress.

So: state-mandated term limits for fed representatives are not valid, and the House cannot refuse to seat a member who satisfied the constitutional requirements despite his scandals.