The Powers of Congress

Question 1

Where can Congress get power from?

Answer 1

Congress can only act pursuant to those powers enumerated in the Constitution
- Police power is left to the states
- Every case about Congress is a federalism case

Question 2

McCulloch v. Maryland (3 part test of whether an act of Congress is Constitutional)

Answer 2

1. The necessary and proper clause expands, rather than contracts, Congress. Power was vested in Congress by the People and not the States.

Constitutional if
1. the ends are legitimate,
2. within the scope of the constitution, and
3. the means of achieving it are not expressly prohibited and consist with the letter and spirit of the constitution.

Question 3

McCulloch v. Maryland: Federal Immunity

Answer 3

States may not (absent congressional authorization) impose taxes or regulations directly on the federal government or its instrumentalities.
-Because of the supremacy clause.

Question 4

The FIVE Contextual Canons

Answer 4

1. Whole-Text Canon. The text must be construed as a whole.
2. Presumption of Consistent Usage. A word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning.
3. Surplusage Canon. If possible, every word and every provision is to be given effect.
4. Harmonious-Reading Canon. The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.
5. General/Specific Canon. If there is a conflict between a general provision and a specific provision, the specific provision prevails.

Question 5

Wickard “Wheat”

Answer 5

The relevant question in determining whether Congress could regulate a given activity under the commerce power was whether that activity had a substantial effect on interstate commerce,

even if the activity itself did not constitute interstate commerce.

Question 6

Civil Rights act of 1964: Commerce Clause

Answer 6

The civil rights act was justified via the commerce clause because it regulated the behavior of private citizens even if that was done for moral means.

-The lesson is that the means of the Commerce Clause matter, not the end.

Question 7

United States v. Lopez “Congress creates gun free school zones under commerce clause”

Commerce power Regulation three “broad categories of activity”: (CIA)

Answer 7

(1) The use of the channels of interstate commerce
(2) Regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce; and
(3) those activities that substantially affect interstate commerce.
if economic activity is involved

Question 8

Heart of Atlanta Motel v. U.S. “The Green Book, Racist Motel”

Answer 8

The motel was an instrumentality or channel of interstate commerce or travel. It’s operations collectively affect interstate commerce, therefore Congress can enforce civil rights act on it.

Question 9

Katzenbach v. McClung “Racist BBQ”

Answer 9

Ollie’s BBQ in aggregate substantially affected interstate commerce because it bought most of its meat from across the border.

Question 10

The difference between the Regulatory and the Taxing Power

Answer 10

Regulation: Con. must act within the enumerated powers.
The enumerated powers have a textually-based subject-matter limitation

Taxing has no subject limitation but limits the mechanism used by Con.
“FOR THE GENERAL WELFARE” (Necessary and proper clause; Police Power)
- Specifically, Con. is limited to requiring an individual or entity to pay money into the Federal Treasury

Question 11

Taxing Power
Bailey v. Drexel Furniture:

Answer 11

Congress cannot use taxing power to penalize conduct that the Commerce power does not grant the power to regulate

BUT

Congress can influence activities that are outside enumerated powers via the Taxing and Spending powers.

Question 12

ACA “Tax or Command?” Provision (Sebelius)

Answer 12

A. Every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.

B. Since the statute can be reasonably read as a tax, it is therefore constitutional.

Question 13

Sebelius: Tax vs. Penalty Factors

Answer 13

1. The “shared responsibility payment” is paid into the treasury when filing taxes
2. Amount owed based on income tax rather than a flat amount
3. Found in the IRS code and enforced by the IRS
4. Intent to influence conduct does not mean it is not a tax
5. Payment is not so high that there is no choice but to buy health insurance
6. Not limited to willful violations, while penalties often are

Question 14

Coercion and commandeering after NFIB v. Sebelius
Medicaid expansion provisions were unconstitutional due to the confluence of two features:

Answer 14

(1) the ACA made the continuance of funding for a preexisting, distinct program (pre-ACA Medicaid) dependent on the states’ compliance with the conditions of a new program (the ACA’s Medicaid expansion), and
(2) the amount of money the states stood to lose from the preexisting program was huge.

Question 15

Test for Constitutionality of Coercion under Dakota: Conditional Funds Withheld

Answer 15

Congress may condition the receipt of federal funds by states if the conditions meet four specific limitations related to the
1. general welfare,
- Courts should substantially defer to the judgment of Congress
2. unambiguity,
- States should be able to exercise their choice knowingly, cognizant of the consequences
3. federal interest, and
- (Precedent does not elaborate)
4. Constitutional compliance

Question 16

The Difference between A14-15S5 Powers and Other Enumerated Powers

Answer 16

14th/15th section 5 powers are
- Remedial
- Can only be directed at the states

Other enumerated powers are
- Regulatory
- Can be directed at individuals, corporations, and states
- But with limits on the regulation of states by Congress

Question 17

Amendment 14 Section 5: The Text

Answer 17

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Question 18

Remedial Measures vs. Preventative Measures
City of Boerne v. Flores “RFRA enacted to expand religious freedom after a restrictive 14th amendment precedent”

Answer 18

A. “Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is.

It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”

B. While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented.

C. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one.

Explanation: Legislation enacted under §5 must generally deter or prevent conduct that itself would violate the 14th Amendment. Legislation may not expand the 14th

Question 19

State Action Doctrine
United States v. Morrison, 529 U.S. 598 (2000). “VAWA allowed female victims of violence to sue private citizen perpetrators”

Answer 19

State action doctrine: With the exception of the Thirteenth Amendment (which flatly prohibits slavery),

A. the Constitution only regulates the behavior of government and government officials.

The law in question exceeded Congress’s section 5 power because it regulated private citizens by allowing victims of violence to sue their perpetrators.

S5 only permits Congress to regulate the behavior of those capable of violating the constitution.

Question 20

Missouri v. Holland, 252 U.S. 416 (1920).
Difference between two kinds of treaties that allow the enacting of otherwise unconstitutional laws

Answer 20

Important distinction between
(a) treaties that enable Congress to enact statutes that might otherwise exceed its enumerated powers, and
Can potentially expand Congressional power (valid)

(b) those that purport to dilute the individual rights otherwise guaranteed by the Constitution.
Impermissible (Invalid)

Question 21

New York v. United States, 505 U.S. 144 (1992) “States must regulate according to Congress or else take title to nuclear waste”

Answer 21

1. The Federal Government may not compel the States to enact or administer a federal regulatory program.
2. Still, The Constitution enables the Federal Government to pre-empt state regulation contrary to federal interests, and
   • it permits the Federal Government to hold out incentives to the States as a means of encouraging them to adopt suggested regulatory schemes.

Even if Congress has regulated within the scope of an enumerated power, the regulation will still be subject to analysis under the anti-commandeering principle if the regulation is directed at states.

Question 22

Anti-Commandeering Principle:

Answer 22

Congress has no power to command the state (or their political subdivisions) [or their officers] to take affirmative steps to govern their residents according to federal directives.

Question 23

Printz v. United States, 521 U.S. 898 (1997): Bypassing the Anti-Commandeering Principle

Answer 23

Congress cannot bypass the anti-commandeering principle by forcing state officers to do something directly.
- The anti-commandeering principle is categorical; not subject to any balancing test of the federal interest or the importance of the law.

Question 24

The (four) limits of the anti-commandeering principle

Answer 24

1. Only applies to federal statutes regulating the states in their sovereign capacities (and not in their proprietary capacities)
   - “Generally applicable legislation” (states and private parties both subject) is ok [like employment law]
2. Only forbids laws requiring the states to take affirmative acts
   - Not merely those prohibiting the states from acting, because of the Supremacy Clause
3. Does not forbid encouraging states to act according to federal instructions
   Like funding with strings attached
   Still must follow South Dakota v. Dole (promoting the general welfare)
4. Does not apply to federal commands to state courts because of the Supremacy Clause

Question 25

Congress’s Authority to Abrogate State Sovereign Immunity
Alden v. Maine, 527 U.S. 706 (1999)

Answer 25

1. State governments enjoy immunity from private unconsenting suits brought under federal statutes in state court just as they do in federal court.
2. This is a limit on Congress’s legislative power though, not an expansion of XI immunity

Question 26

Xth Amendment

Answer 26

• Technically a truism, reiterates the principle of federalism limiting the federal government.
• Federal powers cannot be used to undermine the sovereignty of the states by compelling the states to do something
• A program has to really be a choice, can’t be so threatening that it is coercive to the states.