The Federal Legislative Power Flashcards
Commerce Power
Congress has the power to regulate all foreign and interstate commerce. To be within Congress’s power under the Commerce Clause, a federal law regulating interstate commerce must either regulate the:
1) Channels of interstate commerce;
2) Instrumentalities of interstate commerce and persons and things in interstate commerce; OR
3) Activities that have a substantial effect on interstate commerce
*This is the Perez approach
*Aggregation: Can aggregate the effects to find a substantial effect on economic activity
*Congressional findings on effects are helpful, but not binding
*Jdx hook also helpful
*Can only regulate economic activity, not someone who is doing nothing
Taxing and Spending Power
Congress has a plenary power to spend for the general welfare and has a comprehensive power to tax, and can use these powers to achieve policy goals. Congress can protect its spending through measures using the Necessary and Proper Clause
*Deference to Congress when making the determination as to whether an expenditure promotes the general welfare
Limits on Taxing and Spending Power
Congress may condition spending on the passage of State legislation or on cooperation by State officers in a federal regulatory program so long as Congress is unambiguous, the condition is related to the spending program, and the financial inducement does not amount to coercion
Statutory Scheme
When Congress establishes a statutory
scheme that regulates an interstate market (things in commerce), then it may regulate activities that rationally could be found to impact on its regulatory scheme
*Per Justice Scalia, making use of the Necessary and Proper Clause
13th, 14th, and 15th Amendment Enforcement Power
Each of the 13th, 14th, and 15th Amendments (ban on slavery, equal protection and due process, and voting rights) contain a provision that authorizes Congress to pass “appropriate legislation” to enforce the civil rights guaranteed by those Amendments
Necessary and Proper Clause
Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government. Thus, Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government. The Necessary and Proper Clause standing alone cannot support federal law — it MUST work in conjunction with another federal power
Treaty Power
1) Treaties are a source of Federal authority
2) Treaties may self-executing or non-self-executing (courts apply only self-executing treaties and implementing legislation)
3) In the case of a conflict between a self-executing treaty and Federal law, courts will attempt to avoid finding a conflict if possible, but if there is a clear
conflict will apply the SECOND in time
Commandeering
Congress cannot compel States to enact a federal regulatory scheme BUT:
a) Congress may condition spending on the passage of State legislation or on cooperation by State officers in a federal regulatory program so long as Congress is unambiguous, the condition is related to the spending program, and the financial inducement does not amount to coercion; and
b) Congress may pass legislation that preempts State legislation unless the State legislates in a particular manner, or that puts some Federal regulation in effect if the State fails to act (Legislate or we will legislate in a manner you won’t like)
*Rule from New York v. United States
14th Amendment Enforcement – What rights get enforced?
1) The right must be defined by the courts as a right
2) Only remedial (to correct a problem)
3) Prophylactic/preventive measures still okay (if remedial of an established pattern)
4) Measures to be evaluated according to whether they are congruent and
proportional responses to the problem
*Rule from City of Boerne v. Flores
*Cannot use with Necessary and Proper Clause
Sovereign Immunity
States enjoy sovereign immunity
from suit by private parties in
Federal court even in Federal
question cases
*Only applies to States and State-run entities, not local governments
*EXCEPTIONS:
- Waiver by the State
- Injunctive relief against State officials
- Actions between States or by the Federal government
- Abrogation by the State
Preemption
EXPRESS: When Congress expressly preempts State law on an issue or in a field
IMPLIED: When…
1) A conflict between the Federal and State law makes it impossible for both to coexist
2) The State law undercuts the goals of the Federal law/impedes the Federal objective; or
3) The Federal statute is so exhaustive in its regulation of a field that impliedly Congress could not have wished to allow State regulation in this area
*Supremacy Clause under Article 6, Section 2 provides that Federal law is the “supreme law of the land.” Thus, any state law that directly or indirectly conflicts with a federal law is void under the Supremacy Clause
