Separation of Powers (Legislative Power) Flashcards
For a Federal Law to be Constitutional
Requires 2 things:
- Congress has the power to pass the law
- The law must not violate a constitutional right
Congress’s Powers
Include:
- Enumerated powers
- Enabling Clauses of the 13th, 14th, and 15th Amendments
- Necessary and Proper Clause
Enumerated Powers
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
Enabling Clauses of the 13th, 14th, and 15th Amendments
Gives Congress the power to enforce those amendments by appropriate legislation.
Necessary and Proper Clause
- 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).
Commerce Power
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)
Commerce Power?: Purpose
Remember that the purpose does not have to be commerce related. What matters is that the action itself is involved in commerce.
Commerce Power: Activities that Substantially Affect Interstate Commerce
- (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.
Commerce Power: Limitations
- 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))
Taxing Power
Congress has the power to impose and collect taxes in order to pay debts and spend for the general welfare.
Taxing Power: What is a “Tax”?
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)
Taxing Power: Regulatory 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.
- 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.
Spending Power
- 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)
Spending Power: Placing Conditions on Receipt of Federal Funds
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
War and Defense Powers
Congress may declare war, raise and support armies, provide and maintain a navy, and organize, arm, discipline, and call forth a militia.
War and Defense Powers: Wartime
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
War and Defense Powers: Military Courts
Congress can establish military courts to gain jurisdiction over members of the armed forces, conduct court-martial proceedings, and try enemy combatants
Investigatory Power
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.
Property Power
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)
Power of Eminent Domain
Congress has an implied power to take private property for public use.
Standard for Eminent Domain
That something be rationally related to a conceivable public purpose.
Admiralty and Maritime Power
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
Bankruptcy Power
Congress has the power to “establish uniform laws on the subject of Bankruptcies throughout the United States”
Postal Power
Congress may establish post offices and post roads
Copyright and Patent Power
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.”
Speech and Debate Clause
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).
Civil War Amendments
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.)
Enforcing the 14th and 15th Amendments
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
14th and 15th Amendment v. 11th Amendment
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.
Delegation of Power
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.
Impeachment Power
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.
Impeachable Offenses
Treason, bribery, and other high crimes and misdemeanors (e.g. perjury)
Result of Impeachment
One is removed from office (does not carry any penalty beyond removal from office).
Appointment Power
Congress can appoint officials to its legislative committees, but it cannot appoint members to any agency or commission with admin powers.
Plenary Power over Aliens
- 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.
Size of SC
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).
