The Legislative Power

Question 1

Congress’s Enumerated and Implied Powers

Answer 1

Congress can exercise the powers enumerated in the constitution (under Article I, Section 8) plus any powers necessary and proper to carry out any of its enumerated powers

Powers to Know
– Power to Tax and Spend
– Power to borrow money
– Power to regulate commerce
– power to declare war
– Power to raise and support armies
– power to provide and maintain a navy
– necessary and proper clause

Question 2

Necessary and Proper Clause

Answer 2

Under the necessary and proper clause, congress may seek to achieve any end that is legitimate under its express powers so long as its chosen means are reasonably adapted to achieving that end.

The exercise of power under the necessary and proper clause is reviewed under rational basis – Congress has the power to enact any law which is rationally related to the implementation of a constitutionally enumerated power

Question 3

No Federal Police Power

Answer 3

Congress has no general police power - no generally power to legislate for the health, safety, and welfare of the nation

However, congress has police power type powers over the district of Columbia, federal lands, military bases, and Indian reservations.

Question 4

Taxing Power

Answer 4

Congress has the power to tax in order to pay debts, provide for the common defense, and provide for the general welfare. Taxing may be for any public purpose not prohibited by the constitution.

Most Taxes will be upheld if they bear some reasonable relationship to revenue production.

Taxes are proper when the primary motive of the tax is to obtain revenue with an incidental motive of discouraging certain conduct (but the power to tax does not include the power to lay a penalty)

NOTE - simply because legislation describes the payment as a penalty does not prevent the measure from being upheld as a valid tax

Question 5

Spending Power

Answer 5

Congress has the power to spend on anything which is necessary and proper for carrying out its express powers, or on a matter unrelated to its express powers as long as the spending promotes general welfare.

Question 6

Conditions on Federal Funds (Spending Power)

Answer 6

Congress may attach conditions to the receipt of federal funds by the states if:

1) the exercise of the spending power is in pursuit of the general welfare
2) the conditions imposed are clear and unambiguous
3) the conditions are related to the federal interest in the spending program
4) The conditions do not otherwise violate the constitution
5) the financial inducement offered is not so coercive as to pass the power at which pressure turns to compulsion

Coercive - When a state has no option other than complying with the requirements set by congress, the offer is coercive and exceeds congress’s spending powers

NOTE - Withholding medicaid funding (10% of state budget) unless participated in Medicaid expansion was deemed coercive

Question 7

Commerce Power

Answer 7

Congress has the power to regulate all foreign and interstate commerce, as well as commerce with Indian tribes.

This power to regulate extends to:

1) Interstate commerce itself (commerce that concerns more than one state)
2) the channels of interstate commerce (roads, airways, navigable waters, telephone, internet…)
3) the instrumentalities of commerce (planes, trains, cars) and persons or things involved in interstate commerce
4) Intrastate ecumenic activity that congress rationally believes substantially affects interstate commerce

Question 8

Aggregation Doctrine

Answer 8

When congress attempts to regulate intrastate commercial activity, the court will uphold the regulation if it can think if a rational basis on which congress could conclude that the activity in the aggregate substantially affects interstate commerce

Think of the wheat case where the farmer exceed the quota but only for personal use

Question 9

Aggregation Doctrine and Non-Economic Activity

Answer 9

Congress generally lacks the authority to regulate local non-economic activity on a theory, that in the aggregate, the activity has a substantial effect on interstate commerce

The regulation will be upheld only if congress can show that the non-economic local activity has a direct substantial economic effect on interstate commerce (hard to do)

Question 10

Tenth Amendment Limitation to Commerce Power

Answer 10

The court has interpreted the Tenth Amendment to preclude congress from regulating noneconomic intrastate activity in areas traditionally regulated by state or local governments

EX: congress cannot criminalize intrastate domestic violence against women, even though in the aggregate such violence substantially affects interstate commerce because of the loss of work, travel, and spending by victims

Question 11

Compelling Activity (Commerce Power)

Answer 11

Congress may not use its power under the commerce clause to compel individuals to engage in commerce. It may only regulate activity, not inactivity.

Question 12

Private Discrimination and Commerce Power

Answer 12

Under the commerce power, Congress may prohibit private discrimination in activities that might have a substantial effect on interstate commerce.

Congress can directly regulate public discrimination (by states or local governments) under its Fourteenth Amendment enforcement powers

Question 13

War Power

Answer 13

Congress has the power to declare war, to raise and support armies, to provide and maintain a navy, and to make rules and regulates of those forces.

Congress’s War powers include the authority to regulate the evils which have arisen from war and its progress, even if the war itself is already ended. Meaning economic regulation during war and in the post war period to remedy wartime disruptions have been upheld.

Question 14

Investigatory Power

Answer 14

Congress has broad implied powers to investigate to secure information for potential legislation or other official action (impeachment). Investigation must be expressly or impliedly authorized by the appropriate congressional house.

Subpoena of President - Congress can subpoena the President’s personal information. The subpoena must advance a legitimate legislative purpose, but the court will also balance congress’s intent in obtaining the information against the burdens on the President.

Question 15

Property Power

Answer 15

Congress can dispose of and make rules for territories and other properties of the United States

The federal takings of private property must be pursuant to an enumerated power under some other provision of the constitution

Question 16

Postal Power

Answer 16

Congress has an exclusive postal power. Under the postal power, congress can classify and place reasonable restrictions on the use of mails but may not deprive any citizen or group of citizens of the general mail privilege

Question 17

Power over Citizenship

Answer 17

Congress may establish uniform rules of naturalization (gives congress power over aliens)

Aliens have no rights to enter the US and can be refused entry because of their political beliefs. However, resident aliens must get notice and a hearing before they can be deported.

Congress has exclusive power over naturalization and denaturalization. However, congress can’t take away the citizenship of any citizen without their consent.

Question 18

Delegation of Legislative Power

Answer 18

Congress may not delegate its legislative authority to another branch of government, but congress may give the executive branch (including administrative agencies) discretion to promulgate rules and regulations so long as congress provides an intelligible principle.

An intelligible principle requires that congress gives the official or agency
- direction
- guidance
- standards

Question 19

Broad Delegation on Major Questions

Answer 19

When an agency adopts regulations that have extraordinary economic and political significance (major questions), it must be able to point to clear congressional authorization for the exercise of such power.

If not, the regulation will be struck down

Question 20

Bicameralism and Presentment

Answer 20

To pass a law, Congress must use bicameralism (passage of a bill by both houses of congress) followed by a presentment to the President for signature of veto.

Attempts to create or control enforcement of laws without bicameralism or presentment are invalid

Question 21

Line Item Vetos

Answer 21

A line item veto allows the president to specifically veto a provision of a bill, while approving the other provisions of a bill.

The line item veto is unconstitutional (congress cannot give the president this power). The president can only approve in whole or reject in whole.

Question 22

Legislative Vetos

Answer 22

A legislative veto is a provision included in a statute which confers discretion administrative agencies and allows the house or senate alone to rescind certain actions by simply passing a resolution

The legislative veto is unconstitutional because it violates bicameralism and presentment