Separation of Powers (Legislative Power)

Question 1

For a Federal Law to be Constitutional

Answer 1

Requires 2 things:

• Congress has the power to pass the law
• The law must not violate a constitutional right

Question 2

Congress’s Powers

Answer 2

Include:

• Enumerated powers
• Enabling Clauses of the 13th, 14th, and 15th Amendments
• Necessary and Proper Clause

Question 3

Enumerated Powers

Answer 3

Include:

• (taxing and spending)- to collect taxes and spend money for the general welfare
• to borrow money on the credit of the U.S.
• (commerce)- to regulate commerce
• (war and defense powers)- to declare war, and to raise and support the army, navy, and militia

Question 4

Enabling Clauses of the 13th, 14th, and 15th Amendments

Answer 4

Gives Congress the power to enforce those amendments by appropriate legislation.

Question 5

Necessary and Proper Clause

Answer 5

• Gives Congress the implied power “to make all laws which shall be necessary and proper” to carry out an enumerated power (E.g. establishing a national bank to carry out the spending, taxing, and commerce powers).
• But remember that an exam answer should include the necessary and proper clause in conjunction with another power (it should not say the Necessary and Proper Clause alone).

Question 6

Commerce Power

Answer 6

Congress can regulate:

• channels of interstate commerce (i.e., highways, waterways, and air traffic)
• instrumentalities of interstate commerce (i.e, cars, trucks, ships, airplanes)
• activities that substantially affect interstate commerce (can give power over intrastate activities)

Question 7

Commerce Power?: Purpose

Answer 7

Remember that the purpose does not have to be commerce related. What matters is that the action itself is involved in commerce.

Question 8

Commerce Power: Activities that Substantially Affect Interstate Commerce

Answer 8

• (Substantial Effect)- Congress has the power to regulate any economic activity, whether carried on in one state or many, which has a substantial effect upon interstate commerce.
• (Cumulative Effect Doctrine)- Congress can regulate activities that have a tiny effect on interstate commerce independently, when all such activities are put together, a substantial cumulative effect upon interstate commerce will result.

Question 9

Commerce Power: Limitations

Answer 9

• Congress cannot use the commerce power to regulate intrastate non-economic activity (e.g. handgun possession, violent crime, loansharking) unless it is regulated with a “comprehensive scheme”)
• Commerce Clause cannot be used to overcome state sovereign immunity (the 11th Amendment trumps the Commerce Clause (unless the 13th, 14th, and 15th amendments are involved))

Question 10

Taxing Power

Answer 10

Congress has the power to impose and collect taxes in order to pay debts and spend for the general welfare.

Question 11

Taxing Power: What is a “Tax”?

Answer 11

Includes:

• it raises revenue (obj. test); or
• it was intended to raise revenue even if it doesn’t (subj. test); or
• Congress has the power to regulate the activity that’s being taxed (regulatory test)

Question 12

Taxing Power: Regulatory Test

Answer 12

• 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.
• Even if Congress does not have power to regulate the activity taxed, the tax will be upheld if dominant intent is to raise revenue and it does raise revenue.

Question 13

Spending Power

Answer 13

• Article I, Section, Clause 1, provides Congress with the power to spend for the general welfare (general welfare is a very broad standard).
• The spending power is a way for Congress to get around limits on its regulatory power (this is a way to circumvent around a state’s powers under the 10th amendment)

Question 14

Spending Power: Placing Conditions on Receipt of Federal Funds

Answer 14

Are permissible if:

• the spending serves the general welfare;
• the condition is unambiguous;
• the condition is related to the federal program (relatedness);
• the state is not required to undertake unconstitutional action; and
• the amount in question is not so much that the state is “coerced” into accepting the funds

Question 15

War and Defense Powers

Answer 15

Congress may declare war, raise and support armies, provide and maintain a navy, and organize, arm, discipline, and call forth a militia.

Question 16

War and Defense Powers: Wartime

Answer 16

During wartime, Congress has the power to:

• activate the military draft and selective service;
• initiate wage, price, and rent control of the civilian economy
• exclude civilians from certain restricted areas

Question 17

War and Defense Powers: Military Courts

Answer 17

Congress can establish military courts to gain jurisdiction over members of the armed forces, conduct court-martial proceedings, and try enemy combatants

Question 18

Investigatory Power

Answer 18

Congress has broad investigatory powers (can investigate any matter that the Constitution allows it to legislate).

-Congress can do things necessary to facilitate an investigation, but it cannot override any person’s constitutional rights.

Question 19

Property Power

Answer 19

Congress has the power to regulate or dispose of federal property (therefore, for laws dealing with federal territory, Congress can pass any law it would like)

Question 20

Power of Eminent Domain

Answer 20

Congress has an implied power to take private property for public use.

Question 21

Standard for Eminent Domain

Answer 21

That something be rationally related to a conceivable public purpose.

Question 22

Admiralty and Maritime Power

Answer 22

The SC has determined that the Necessary and Proper Clause gives Congress complete and plenary power to fix and determine the maritime laws throughout the country

Question 23

Bankruptcy Power

Answer 23

Congress has the power to “establish uniform laws on the subject of Bankruptcies throughout the United States”

Question 24

Postal Power

Answer 24

Congress may establish post offices and post roads

Question 25

Copyright and Patent Power

Answer 25

Congress may “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Question 26

Speech and Debate Clause

Answer 26

Members of Congress cannot be punished or prosecuted for anything they say during debate on the floor in either house (cannot be “questioned” for anything that is said on the floor).

Question 27

Civil War Amendments

Answer 27

Congress has the power to enforce:

• the 13th Amendment which bans slavery
• the 14th Amendment which prohibits states from violating DP & EP
• the 15th Amendment which prohibits states from discriminating with respect to race in voting rights (includes power to protect integrity of voter reg.)

Question 28

Enforcing the 14th and 15th Amendments

Answer 28

Requires:

• regulation of states (not private individuals)
• state governments to have engaged in widespread violations of the Amendment
• the legislative remedy must be “congruent and proportional to” the violations

Question 29

14th and 15th Amendment v. 11th Amendment

Answer 29

If Congress has passed valid legislation to enforce the 14th or 15th Amendment legislation, recall that sovereign immunity under the 11th Amendment will not apply.

Question 30

Delegation of Power

Answer 30

Congress can create an executive agency and give the agency some legislative power that will prevail over inconsistent state law as long as there is some “intelligible principle” that guides the agency.

Question 31

Impeachment Power

Answer 31

Congress can remove the President, federal judges, and any federal official from office. The House has the sole power to impeach and the Senate has the sole power to try impeachments. A two-thirds vote in the Senate is required for conviction.

Question 32

Impeachable Offenses

Answer 32

Treason, bribery, and other high crimes and misdemeanors (e.g. perjury)

Question 33

Result of Impeachment

Answer 33

One is removed from office (does not carry any penalty beyond removal from office).

Question 34

Appointment Power

Answer 34

Congress can appoint officials to its legislative committees, but it cannot appoint members to any agency or commission with admin powers.

Question 35

Plenary Power over Aliens

Answer 35

• Congress has plenary power over aliens and therefore, can set the conditions under which aliens can enter and remain in a country. A state cannot impose any contrary litigation (the supremacy clause).
• However, any congressional act that discriminates against alienage (e.g. job opportunities) must comply with the RB test under the EP clause.

Question 36

Size of SC

Answer 36

Congress determines the size of the SC. President cannot alter the number of justices unilaterally (can only change makeup if Congress has written and approved the necessary legislation).