The Legislative Power Flashcards
Enumerated and Implied Powers
Congress can exercise the powers enumerated in the constitution, plus any powers NECSSARY AND PROPER to carry out any of its enumerated powers
Federal Police Power
COngress does not have general police power, unlike states (but tax and spend basically achieves this)
EXCEPTIONS:
1) Federal lands
2) Native American Reservations
3) DC
Necessary and Proper clause
Congress has pwer to make all laws necessary and proper to carry out any of its enumerated powers, so long as they don’t violate anotehr provision of the constitution
Low hurdle, just need to be rational.
Must be in furtherance of an enumerated power. Doesn’t provide basis for law on its own
Taxing and Spending Power
Congress may tax and spend to promote the general welfare. May be for ANY public purpose not prohibited by the C.
Spending Conditions
Congress can impose conditions on the grant fo money to state or local governments to pressure them to do things.
Conditions are valid if:
1) clearly stated
2) relate to the purpose of the program
3) are not unduly coercive (very high bar) AND
4) Constitutional
Commerce Power
Congress can regulate commerce with foreign nations, Native tribes, and among states
Interstate Commerce
1) Channels (of interstate commerce) (highways, waterways, telephone lines)
2) Instrumentalities (of interstate commerce) (trains, cars)
3) Activities that have a substantial effect on interstate commerce (aggregate effect of action, not individual) (wheat farming example)
Interstate Commerce Limitations
10th Amendment: Can’t regulate non-economic activity traditioanlly regulated by states
Congress can regulate activity, but not compel it. (can’t make people buy healthcare, but can tax for not having it)
Delegation - Major Questions Doctrine
Regulations of extraordinarily economic and politial significant need CLEAR congrressional authorization
Example: EPA regulation that would have mandated a broad industry shift from dirty to clean energy was too significant. Needed explicity congressional approval.
Delegation of Legislative Authority
Congress can delegate power but must include intelligible standards
Usually, general standards suffices
Example: Congress gave EPA authority to regulate air pollutatnts to “protect public health.”
—this was enough
But see Major Questions Doctrine
Seperation of Powers: No line item veto
Congress can’t give line item veto power to president
(cross out parts of budget bills. president can veto whole bill, but not pick and choose)
Seperatoin of powers: legislative vetos
Congress can’t reatin a legislative veto.
(Congress gives itself authority to amend or repeal and existing law without undergoing BICAMERALISM and PRESENTMENT)
Seperatin of Powers: Bicameralism and Presentment
Bicameralism: passage of a bill by both houses of congress
Presentment: presenting bill to president for signature or veto
Attempts by congress to create laws or control the enforcment of laws without B and P are invalid
