Separation of Powers Flashcards
Describe congress’ power over federal courts
Lower fed courts: congress can do what it wantsSCOTUS: congress cannot stop it from hearing issues of federal law. Congress cannot touch original jdx.Congress also cannot take something out of appellate jdx and put it into original jdx. (Marbury v. Madison)
what are the three sources that gives congress the power to legislate?
enumerated powers, enabling clauses, N&P clause
What are Congress’ enumerated powers?
collect taxes, spend money for the general welfare, to borrow $ on the credit of the US, to regulate commerce with foreign nations and among the several state, to declare war, and to raise and support the army, navy and militia (Art I Sec 8)
what does the enabling clause allow congress to do?
the enabling clauses of the 13 14 15 amendments give Congress the power to enforce those amendments by “appropriate legislation”
N&P Clause
gives congress the power to pass laws that are N&P to enforce the enumerated powers, and all other powers vested by the US Constitution in the gov’t of the US or any dept or officer thereof (Art I Sec 8)
Name the three mediums by which Congress can regulate commerce
Channels of interstate commerce, instrumentalities of interstate commerce and activities that SUBSTANTIALLY AFFECT interstate commerce
What are the two doctrines under the “Substantial affects” test?
Affectation doctrine and the cumulative effect doctrine
What is the affectation doctrine?
Congress has the power to regulate any economic activity, whether carried on in one state or many, that has a substantial effect upon interstate commerce (Nat’l Labor Relations v. Jones and Laughlin Steel)
What is the cumulative effect doctrine?
it expanded the affectation doctrine; even if the activity is small and only has a tiny effect on their own, if the cumulative effect of those activities have an effect on IC, congress can regulate it (Wickard v. Filburn, the wheat case).
What is needed for congress to validly use the commerce clause under the “substantial effects” test?
- the regulated activity is economic in nature, and2. that the regulated activity (when taken cumulatively throughout the nation) has a substantial effect on IC
Describe Congress’ taxing power
Art I Sec 8: Congress has the power to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and general welfare
when will a tax be upheld as a valid exercise of the taxing power?
It is a valid exercise of the taxing power as long as it fits within one of these three categories:Objective Test: it, in fact, raises revenueSubjective Test: it was intended to raise revenueRegulatory test: as long as congress has the power to regulate the activity taxed, the tax can then be used as a regulating device rather than for revenue-raising purposes
Spending Power
Congress’ power to tax and spend must be exercised for the general welfare of the US. By exercising its spending power, Congress can require states to comply with specified conditions in order to qualify for federal funds.
When can Congress place a condition on the receipt of federal funds by a state?
if:1. the spending serves the general welfare;2. the condition is unambiguous3. the condition relates to the federal program;4. the state is not required to undertake unconstitutional action;5. the amount in question is not so great as to be considered coercive to the state’s acceptance
what are Congress’ war and defense powers?
- declare war2. raise and support armies3. provide and maintain a navy4. organize, arm, discipline and call forth a militiathe war power confers upon congress very broad authority to initiate whatever measures it deems necessary to provide for the national defense in peacetime as well as in wartime.
what powers does congress have during wartime?
In the name of national security, congress can:1. enact a military draft2. control prices and wages3. confine citizens in designated areas
Congress Investigatory Power
Congress can use the N&P clause to conduct investigations incident to its legislative power. This power is broad and may extend to any matter related to its legitimate law making power. It cannot override individual’s constitutional rights.
property power
congress has the power to dispose of an make all needful rules and regs respecting the territory or other property belonging to the US. (Art IV Sec 3). If dealing with a fed territory, congress has the power to regulate it and it has a general legislative power. Congress can pass any law it wants for DC, even though it will not apply to the rest of the country.
